Cottrell's Appeal—Bowers' Estate

1. Subrogation being founded on principles of equity may be enforced where there is no contract for a transfer of the security. 2. To prevent a sale upon execution the defendant in the judgment gave to the judgment-creditor a promissory note with an endorser for the amount of his claim and received the single bill on which the judgment was founded. The note having been discounted was ultimately paid to the bank by the endorser thereon, and he afterwards procured from the creditor an assignment of the judgment on which satisfaction had not been entered. Held, that the endorser was entitled to payment of the judgment in preference to a subsequent judgment entered previous to the giving of the note.

Appeal by J. W. Cottrell from the decree of the Common Pleas of Lancaster county, directing distribution of proceeds of sale of real estate of A. Bowers. Ephraim Hershey had a judgment v. Bowers, entered to January Term 1850; and Cottrell had a judgment against the same defendant to January Term 1852. In December, 1852, the property of Bowers was advertised for sale under execution issued on Hershey’s judgment; and Hershey agreed to stop the sale if Bowers gave him security for the amount of his judgment. Bowers proposed Isaac Pusey as “ security.” Bowers, in that month, gave to Hershey a negotiable note which was endorsed by Isaac Pusey. It was payable at sixty days, and was for an amount exceeding $700. Hershey stated his impression to be that on receiving the note he handed to Bowers the single bill on which his judgment was founded. On, inquiry of Bowers as to entering satisfaction of the judgment, the latter suggested that it remain as it was. Hershey stated that he took the note as a payment of his claim. Nothing was said at the time about his transferring the judgment to Pusey. The note was discounted at bank, and the proceeds received by Hershey. The note not being paid was protested, but was subsequently paid by Pusey. Afterwards, viz. on 19th May, 1858, Pusey procured from Hershey an assignment of the judgment, and claimed payment out of the proceeds of sale of Bowers’ real estate. This was opposed by Cottrell. The auditor appointed reported in favor of Pusey, and exception being taken, the report was confirmed. It was excepted that the Court erred in treating the judgment of Hershey as a valid judgment after it had been paid; and in not directing the payment of Cottrell’s judgment.