Watson's Appeal

p. an¿ 'W. owned certain property, as tenants in common. They jointly executed a mortgage thereon to N. to secure the payment of eleven bonds of $2000 and one of $4000. N. assigned nine of the $2000 bonds to C. and guarantied their payment. About the same time N. borrowed money of D. and gave the $4000 bond as collateral security. N. failed to pay D. and the latter transferred the $4000 bond to E. After the obligors had paid and taken up two of the $2000 bonds, W. conveyed his undivided one-half of the property to N. The deed contained a covenant of N., by whioh he agreed to assume and pay the balance due on said mortgage and to save harmless W., his heirs, executors and administrators, from the payment of the same or any part thereof. Afterwards N. procured a re-assignment of the seven bonds from C. and transferred them to other parties. Held, that by the conveyance by W. of his interest in the land to N., the latter became a tenant in common with P., and when N. paid and took up the bonds secured by the mortgage, which he and P. were jointly obligated to pay, he thereby acquired the right to collect one-lialf thereof out of the estate of P., and was entitled to all the securities and all the remedies given by the mortgage, and that by the assignments of the bonds these remedies passed to his assignees.

Appeal from the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 210. Appeal of Oliver Watson and Oliver Watson, Jr., in right of his wife, formerly Ella R. Potter, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Joseph H. Wonderly and of Ozias Potter, deceased, in the hands of Albert T. Nichols, his administrator. John B. Hall, being the owner in fee of certain real- estate known as the “Foundry Property,” in the city of Williamsport, in 1864, entered into articles of agreement to sell the same to Albert T. Nichols. Nichols in 1866 sold the same to Ozias Potter and Joseph H. Wonderly, there being at the time a balance of $16,000 due Hall from Nichols on the aforesaid agreement. On the 81st of October 1866, Hall executed and delivered to Potter and Wonderly direct a deed of the premises, and the same day Potter and Wonderly gave to Hall bonds for the $16,000 due him from Nichols, and a mortgage on the premises to secure the same; and to Nichols, the same day, bonds for the sum of $24,000, and a mortgage on the same premises to secure the same. The deed and two mortgages were filed for record on the day of their execution. The bonds to Hall were all paid by. the obligors, except one of $4000, which was assigned by Hall to E. L. Piper, and by Piper to Mrs. Catherine J. Packer. Three of the bonds given to Nichols, amounting to $6000, were paid by the obligors. Of these, one bond of $4000 had been assigned by Nichols to Robert Porter, in 1867, as collateral security for a loan of $5500, for which Nichols had given his note, with endorsers, and which note, with the interest thereon, remains unpaid, and said bond was assigned by Porter to Oliver Watson, on the 9th day of May 1878. The remaining seven bonds of $2000 each were assigned by Nichols to E. L. Piper, December 9th 1867, and re-assigned by Piper to Nichols, in 1874 and 1875; and subsequently thereto, to wit, on the 29th of May 1875, two of said bonds were assigned by Nichols to the City National Rank of Williamsport, as. collateral security for a loan to said Nichols upon his note, with endorsers, which note remains unpaid; and five of said bonds were assigned by said Nichols to William H. Armstrong, and by him to the York County National Bank as collateral security, for a loan of $10,000 obtained by Nichols on his notes, endorsed by said Armstrong and others, and which note remains unpaid and the endorsers never released. The bonds were assigned to Armstrong to obtain his endorsement of Nichols’s notes, and assigned by Armstrong to the York County National Bank after failure of Nichols to pay his notes. On September 6th 1869, Ozias Potter, one of the obligors in the said bonds and mortgages, and owner of the undivided one-half of the property described in the aforesaid deed and mortgages, died, leaving to survive him a widow and an adopted daughter, Ella R., since intermarried with Oliver Watson, Jr., having made a will which was declared invalid, on issue thereon, and on the 8th of October 1870, letters of administration de bonis non were granted to the aforesaid A. T. Nichols. On the 11th January 1871, Joseph H. Wonderly, the other obligor in said bonds and mortgages, and owner of the other half part of the said premises with his wife, by their deed dated January 10th 1871, conveyed to said Nichols the one undivided half part thereof. This conveyance 'was expressly made subject to the payment by Nichols of the balance of the debt and interest due upon both of the aforesaid mortgages, and the fact that part or all of the bonds thereby secured had been assigned to third parties was distinctly recognised. This deed also contained a covenant by Nichols “to assume and pay the balance of the debt and interest owing upon said two mortgages and bonds secured thereby, and to save harmless the said Wonderly from any liability for the same;” and it was moreover expressed that the performance of said covenant and by said Nichols was a part of the consideration of said deed, and the deed was executed by Nichols as well as the grantors. Mrs. Catherine J. Packer issued a scire facias upon the Hall mortgage, obtained a judgment, and issued a levari facias to May Term 1878, and then assigned the judgment to Oliver Watson. The sheriff sold the property to Oliver Watson for $9800, for which sum he returned he had taken the receipt of Oliver Watson under the Lien Creditor Act, Mr. Watson claiming that the fund should be appropriated first to the payment of the Hall mortgage, balance in full of debt and interest $5016.57, and the remainder should be applied to the bond which had been assigned by Nichols to Porter and by Porter to him, the said Watson, and so the auditor reported. To this report exceptions were filed on the 31st of December 1878, by the City National Bank and the York County National Bank, and the case referred back to the auditor to make a new distribution on the principles indicated in the opinion of the court, to wit, that Nichols, by virtue of his succession to Wonderly’s half interest in the property, and having paid off the mortgage, was entitled to subrogation as against Potter, but confirming the distribution so far as applied to the Hall mortgage. The auditor made a second report, distributing the $4500 pro rata, upon the whole of the Porter bond and the one-half of the amount of the bonds held by said banks. To this report Oliver Watson and Oliver Watson, Jr. filed exceptions on the 18th of April 1879, alleging as error that the auditor erred in not distributing the whole balance of $4475 to the Porter bond; that the distribution was not in accordance with the law and .the facts, and that there was error in the court in refusing to confirm the first report and in referring the same back to the auditor. On May 9th 1879, the final decree of the court was filed, decreeing a distribution different from that made by the auditor, but not as claimed by Oliver Watson, overruling the exceptions, except to the extent that the distribution made by the auditor was changed by the opinion as filed by the court, and confirming the report of the auditor absolutely. By this decree the $4475 are distributed as follows: One-half thereof to the Porter bond held by Watson, $2237.50 And of the remaining one-half, to wit, $2237.50, to Oliver Watson on the Porter bond, ... 280.46 $2517.96 To the bond held by City National Bank, - - 579.47 To the bond held by York County National Bank, - 1377.57 $4475.00 Erom,which final decree Oliver Watson and Oliver Watson, Jr., took this appeal.