Kendig v. Landis

Opinion,

Mb. Chief Justice Paxson :

The appellant has two funds out of which to claim his money. One of the funds is the proceeds of the sale of the Manor township farm, which was sold by the sheriff for a sum sufficient to pay appellant’s judgment in full. The money is in the hands of the sheriff, but the appellant declines to take it out. The other fund is the proceeds of the sale of the Millers-ville propert3r. This property was sold by the sheriff subsequently to the sale of the Manor farm. The mechanics’ lien creditors have a claim upon this fund, but they are subsequent to the lien of the plaintiff’s judgment. The appellant insists upon his right to take his money out of the latter fund. If he succeeds, he takes the only fund the mechanics’ lien creditors have.

The application of the familiar rule that where one creditor has two funds out of which to make his money, and another creditor has but one, the creditor having the two shall first exhaust the fund upon which the other has no claim, would throw the appellant upon the Manor farm. This rule must prevail, unless the appellant has an equity which would make the application of the principle unjust in the particular instance. The reason why he objects to it is that he is the holder of a second judgment, which is also a lien upon the two properties, but as to the Millersville property it is subsequent to the mechanics’ claims. Hence he desires to first absorb the Millersville fund, in which case his second judgment is good upon the Manor farm. In this, however, he has no equity. When the mechanics put their work and materials upon the Millersville property, they could seg of course that it was bound bjr the lien of appellant’s first judgment. But they also knew that the same judgment was a lien on the Manor farm, and that said farm was amply sufficient to pay it. With this knowledge, they had a right to expect that the appellant would seek to get his money out of the farm, and not deprive them of the security of their liens. They further knew that they could compel him to do so if necessary. Is this right to be taken away because the appellant acquired another judgment which was also a lien upon both properties, and which was entered after the mechanics’ liens had attached to the Millersville property ? The appellant has no equity as to his second judgment, for the reason that it is subsequent to the mechanics’ liens, and be cannot, by tacking liis two judgments together, deprive tbe mechanics of their equity to have the first judgment satisfied out of the Manor farm.

It may be a question, as was intimated in Knouf’s App., 91 Pa. 78, whether the mechanic’s lien claimants are entitled to the right of subrogation. It is not necessary to decide it in tins case, as tbe point does not arise. But we think there can be no doubt as to their right to throw the appellant upon the proceeds of the sale of tbe Manor farm. The money arising from the sale thereof has been made; it is in the hands of the sheriff, awaiting his acceptance, and is sufficient to pay his judgment. We cannot compel him to accept it, but we can and ongbt to prevent bis coming in upon the Millersville property, and sweeping away the fund from the mechanics’ lien creditors, who have no other fund to resort to.

The decree is affirmed, and the appeal dismissed, at the costs of the appellants.