Appeals of Yeager

Opinion by

Mr. Justice Sterrett:

If it be true that appellant became bail for stay of execution in judgment against Mishler, the maker of the note, without the consent of Bechtel, the first indorser, it may be conceded that he had no right to have the judgment against the latter marked to his own use and enforce it as a claim against Bechtel’s estate. The principle applicable to such a state of facts is recognized in Pott v. Nathans, 1 Watts & S. 155, 37 Am. Dec. 456; and Schnitzel’s Appeal, 49 Pa. 23, 78 Am. Dec. 477.

But, on the other hand, if he became surety for the benefit of Bechtel and with his consent, the principle does not apply. The controlling question of fact is whether he did so or not.

Three separate judgments were simultaneously entered against the maker, and two of the indorsers of the note, respectively; and it was then understood and agreed that bail for stay should be entered in each case. Appellant, having consented to become security for that purpose, was duly approved as bail in two of the cases, but by some unexplained oversight no entry was made on the record of the judgment against Bechtel the first indorser. Acting on the supposition that bail for stay had been entered in each case, no notice was taken of the omission. When the stay expired, appellant paid the amount and had the judgments marked to his use. Subsequently he presented the judgment against Bechtel and claimed the right to participate, as a creditor, in the distribution of his estate; but the objection ivas interposed that he had no right to do so, because he became bail for stay of execution in the judgment against the maker of the note, without the consent of Bechtel the first indorser.

The learned auditor, charged with the distribution of the fund in the hands of Bechtel’s administrators, decided adversely to appellant, and his report was confirmed by the court. After-wards, the decree was opened and the report referred back, with power to retake the testimony of Amos B. Wanner, Esq., “aaEo acted as counsel for all the defendants in the three judgments above referred to.” Finally, the report of the auditor as first presented was confirmed and decree of distribution entered accordingly.

Appellant’s contention is that the learned court erred in not deciding that he became surety for the maker of the note with the consent of Bechtel, the first indorser, and for his accommodation and benefit. As we understand the testimony, this contention is sustained.

Mr. Wanner, the Avitness on that subject, testified in substance that he was attorney for all the defendants in the suits against the maker and indorsers of the note; that Bechtel frequently came to his office, spoke about the suits, wanted to haA^e bail for stay entered, and kneAV that appellant had consented to become surety. He further says: “I accepted service of the writ and informed Bechtel of the suit. We had no defense and agreed that judgment be entered and bail entered for stay of execution. This was the conversation with Mr. Bechtel.. He was the very party I wanted to shield.....Bail was to be entered for all and I Avas so informed, and if I had been present I Avould have seen that bail Avas entered in all. I subsequently informed Mr. Bechtel that bail had been entered in all the cases, and he was satisfied.”

In vieAV of this and other corroborated evidence, the conclusion reached by the learned judge, as expressed in his first opinion, Avas clearly correct. He there says: “There can be no doubt it was the intention of all the defendants to have Amos B. Yeager go security for each of them. He became surety with the knowledge and assent of all the defendants, including Mr. Bechtel.” If he had adhered to this conclusion, the decree complained of Avould not- have been entered.

In our opinion the fact is clearly established by the eAndence that at the instance of all the defendants, with their knowledge and consent, and for their accommodation, appellant became bail for stay. In vieAv of this, upon payment of the amount for Avhich he became surety, he was entitled to be subrogated to the rights of plaintiff in each of the respective judgments. To deny him the benefit of that right would, under the circumstances, be ..a harsh measure of justice.

The assignments of error are sustained.

Decree reversed at the costs of appellees and record remitted ¡by the Orphans’ Court, with instructions to distribute the fund in accordance with this opinion.