Wolf v. Ferguson

Citations

• 129 Pa. 272
• 18 A. 139
• 1889 Pa. LEXIS 952

Syllabus

<p>(а) Britton held a judgment against Wolf, which was a lien on Wolf’s own land and also on Wolf’s legal title to certain land which he had sold to Ferguson by a contract calling for a deed clear of incumbrances. There was unpaid, on said contract, purchase money to the extent of $1,000.25.</p> <p>(б) Wolf made a deed to Ferguson in execution of his contract, receiving in settlement of the purchase money $200.25 in cash, and Ferguson’s judgment for $800. Wolf assigned this judgment to Hollar in part payment of a certain judgment indebtedness due from Wolf to Hollar, subsequent in lien to Britton’s judgment. Hollar knew the $800 judgment was for purchase money.</p> <p>(o) Wolf’s own land was afterwards sold by the sheriff to Hollar. The proceeds were more than enough to pay Britton, but the sheriff made a special return that Hollar was entitled to the whole proceeds of sale, ignoring Britton’s judgment, although it appeared in the list of liens attached to the return. The record did not show that this return was read in court, but the sale was confirmed.</p> <p>(d) Hollar received a deed from the sheriff and retained the entire proceeds of sale, less costs. The land purchased by Ferguson was then sold by the sheriff under the $800 purchase money judgment held by Hollar, and the proceeds were brought into court for distribution. Britton, Hollar and subsequent lien creditors claimed payment out of the fund, which was insufficient to pay all.</p> <p>1. By the sheriff’s sale of Wolf's Iand, Britton’s' judgment was paid as to subsequent lien creditors of Ferguson other than Hollar, the Wolf fund being the one primarily liable in equity, and Ferguson’s land sustaining the relation of surety for Wolf. If, therefore, Britton be paid out of the Ferguson fund, the latter’s creditors are entitled to subrogation against the Wolf fund.</p> <p>2. The auditor having awarded Britton payment out of the Ferguson fund, deducting the amount so awarded from Hollar’s $800 judgment, this