Johnston v. Shepard

Citations

• 41 Pa. Super. 203
• 1909 Pa. Super. LEXIS 32

Syllabus

<p>Landlord and tenant — Principal and surety — Bond—Bailment—Distress.</p> <p>A landlord levied for rent in arrear upon the household goods of his tenant, and also upon two hearses and a casket wagon which the tenant held as bailee. Subsequently the tenant became bankrupt and claimed as his exemption the household goods which had been levied upon. Subsequently the tenant’s father, in order to release the household goods, gave a bond to the landlord, the condition of which was that the obligor should pay any difference between the amount the landlord should receive from the trustee in bankruptcy and the amount of rent due. The bond further stated that it was the purpose and intent of the parties that unless the landlord should receive from the trustee his entire rent claim, the obligor should pay the same, or any portion thereof not paid to the landlord from the bankrupt’s estate. The trustee in bankruptcy disclaimed the hearses and casket wagon and thereafter the landlord assigned the bond to the bailors of the hearses and casket wagon, who paid him the full amount of his rent. Prior to this assignment the obligor notified the landlord that he would insist upon the latter exhausting the remedy he had, by a lien upon the property on the premises, including the hearses and wagon. Held, (1) that the fact that the trustee disclaimed the hearses and wagon did not affect the surety’s obligation to pay according to the plain and unmistakable terms of the bond; (2) that the bailors of the hearses and casket wagon had an equity to have the tenant’s own property first applied to payment of the rent; and (3) that as between the equity of the surety and the equity of the bailors of the hearses and casket wagon, the latter equity was superior.</p>