Assigned Estate of Graff, Bennett & Co.

Citations

• 139 Pa. 69
• 21 A. 233
• 1891 Pa. LEXIS 959

Syllabus

<p>[To be reported.]</p> <p>1. When lands are sold by an assignee for creditors subject to the lien of a mortgage, and the mortgagee, without being first required to proceed on his mortgage, is allowed a dividend upon his bond out of the pro needs, creditors whose dividends have been thereby reduced are entitled to be substituted, to that extent, to the mortgagee’s rights.</p> <p>2. A decree of substitution cannot be made, however, so long as any part of the superior creditor’s claim remains unsatisfied, as, until then, he is entitled to the sole direction and control of his security, and of all actions, remedies or arrangements that he may desire to take thereon: Kyner v. Kyner, 6 W. 221; Forest Oil Co.’s App., 118 Pa. 138.</p> <p>3. Wherefore, it is error, in awarding such dividend to the mortgagee upon his mortgage bond, to attach a condition requiring him to assign for the use of the other creditors a corresponding part of his mortgage, even though the decree provide that the part to be assigned shall be postponed to the balance of the mortgage unassigned.</p> <p>4. Speaking for myself only, I am disposed to think thjit the difficulties in the way of a partial and postponed subrogation to the remedies of a partly satisfied creditor are not insuperable, and that the court in Kyner v. Kyner gave up too easily; but the rule, in the form that that case left it, is now too firmly fixed to be disturbed: Per Mr. Justice Mitchell.</p>