Bryson v. Myers

One who purchases real estate which is encumbered by judgments, which he agrees to'pay out of the purchase money, and afterwards discovers another judgment which he did not agree to pay, may take an assignment of the judgments paid by him, in order to protect himself from the payment of the judgment which he did not agree to pay. And if the latter judgment creditor proceed to sell the estate by execution, and the money be brought into court for appropriation, the assignee of the first judgments will be entitled to the money.

ERROR to the Common Pleas of Cumberland county. This was an issue directed by the court to try the right to the proceeds of the sale of the real estate of George Eppley by the sheriff to Jacob Myers, the defendant, for $370. The judgments were, as appeared by the record, 1st. John Shoff v. George Eppley, Rl. Dt. $250. Interest from 23d of March 1837. Entered 29th of May 1837. 2d. Samuel Eberly v. Same, Rl. Dt. $45. Interest from 8th of August 1837. Entered 1st of September 1837. On the 16th of March 1840, there was filed a written assignment of this judgment by the plaintiff to Jacob Myers, purporting to have been dated 1st of April 1839. 3d. Thomas B. Bryson v. Same, Rl. Dt. $66. Interest from 30th of July 1838. Entered 11th of August 1838. Upon this judgment the land was sold. John Shoff affirmed. There was two years’ interest on my judgment paid by Jacob Myers; paid about 1st of April 1839. Cross-examined—At the time Myers paid me, he said he wanted an assignment of this judgment. I did assign the judgment to him; the whole of it. In chief.—This is the assignment of the judgment referred to. Assignment read; dated 14th of November 1840. Witness, again. At the time he paid me the interest, I took him for pay. At the time he paid me the interest, he did not say anything about the assignment of it; he said he was going to pay the interest on the money. Cross-examined.'—When he satisfied me for the whole, he talked about an assignment. He said he paid the interest for himself, that he was going to pay me the whole amount, but not at that time just; and when he paid the balance, he asked me to transfer it. Paid me balance last fall, and I gave him this paper. Samuel Eberly affirmed. Next April will be two years since my judgment was paid. Jacob Myers paid me. When he paid me the money, he paid it for himself. I gave him a receipt. He paid for himself because Myers had the title. I understood Eppley was agreed Myers should do with the judgments as he pleased. When he paid me the money, Myers told me I should enter satisfaction at a suitable time, when I came to Carlisle. Can’t say how long, but some time after the money was paid, this assign-, ment was given. Money was paid me about 1st of April 1839. Think this paper was not then executed. Assignment of Samuel Eberly read; dated 1st of April 1839; filed in court 16th of March 1840. Witness again—Cross-examined.—I think Eppley had told me Myers was to have the judgments. - I know he was agreed. When Myers paid me the money, he spoke of satisfaction. I gave a receipt that time. Some time after, Myers gave me notice I should not enter satisfaction. We talked all in German. In chief.—Jacob Rupp wrote the assignment. Myers told me he would get an assignment, and was getting Rupp to write it—he said the reason was, when he bought the house he was careless about it, and did not examine the office, and then he found out there was another judgment he was not aware of. I believe that is the reason the transfer was made. Myers has been in possession the last two years. Biddle for defendant. Deed from Eppley and wife to Jacob Myers, dated 28th of September 1838, acknowledged the same day for the same property sold; consideration, $380. George Eppley affirmed. Myers and me had negotiated in writing. Myers was to give me $380. He gave me a note for the whole of it. It was to be paid all cash in the spring of 1839. After the making of the deed he gave the note. The note was for the whole $380. He was to pay me the balance that was over these notes of Eberly and Shoff; then he was to pay off as he wanted for himself. The only agreement was, he had bought the property, and was to pay me so much for it. We talked about the judgments. He was agreed to take the judgments, I was agreed to give them to him, and the men were willing to take him for them. The judgments were to be his, not mine. This agreement was better than two months before the deed was made. After the judgments were paid, the overplus he was to pay to me. Cross-examined.—Eppley paid me #50. Jacob Rupp affirmed. Myers went into posssession of this property last April a year, (1839.) Before Myers paid the judgment to Eberly, he requested me to search the docket, if there were any other judgments except Shoff’s and Eberly’s. I did not examine. I advised him when he paid that judgment he should take an assignment: Some time after, I inquired if he took a transfer of the judgment. He showed me a receipt. I then told him that would not answer the purpose. I then told him he should bring me the certificate of Eberly’s judgment, and I would draw an assignment for him. He was afterwards at my house, and he brought the certificate. I drew up the assignment I saw at the table; this is it; left it at my house for the purpose of getting it. When it was executed I told him it would answer the purpose. I advised Myers as Í have stated in relation to Eberly, the same as regards Shoff, and at the same time. Samuel Eberly. Did not know any thing of Bryson's judgment. At the time Myers paid me, Myers told me Eppley said there was no other judgments against him but Shoff’s and mine. The court was respectfully requested to charge the jury on the following points. 1. If the jury believe that Myers purchased the property from Eppley in the fall of 1838, for a sum sufficient to pay all the judgments against it, including the plaintiff’s, he has no equity now, and cannot avail himself of any arrangement then made to keep up the judgments of Shoff and Eberly, to protect him against the judgment of Bryson which he had the means of paying in his hands. 2. If Myers paid the judgments of Shoff and Eberly, or any part thereof absolutely, without asking or taking an assignment of them, he cannot afterwards in consequence of discovering Mr Bryson’s judgment, obtain an assignment of them, and keep them unsatisfied. 3. If Myers paid the judgments of Shoff and Eberly, or any part thereof, they thereby became satisfied pro tanto, and nothing that he could afterwards do would revive them. 4. That if there was no agreement between Shoff and Myers, and Eberly and Myers, when the judgments were paid, that they should still subsist, the plaintiff in the said judgments could not make any agreement afterwards by which they could be kept alive and unsatisfied for the use of Myers. 5. That if no agreement was made between Eppley and Myers at the time of the sale of the house, that he should keep the judgments alive for his protection, after he had paid them, they never could make such an agreement afterwards, if it affected anybody else. The court thus charged the jury: Hepburn, President. — The present issue was directed by the court for the purpose of determining the right of plaintiff to the money claimed by him from the proceeds of the sale of George Eppley’s property. The facts are not complicated, and seem to be in substance these:—On the 28th of September 1838, Eppley sold his house and lot in Shiremanstown to Jacob Myers, for $380, took his note for the amount, and agreed to take as cash in payment of it, the amount of two judgment liens on this property due to Eberly and Shoff; and the balance of the note to be paid him in cash. At the time this deed was executed (28th September 1838,) you will recollect Bryson’s judgment was a lien also on this property—being entered 11th of August 1838, Sboff’s entered 29th of May 1837, for $250, interest from 23d of March 1837, and Eberly’s entered 1st of September 1837, interest from the 8th of August preceding, for $45. These judgments being prior in time, of course are entitled to the money, unless the circumstances alleged by the plaintiff in this issue, entitle him to stand in their room to the extent claimed by him, $59.60. It is alleged by the plaintiff, first, (read his first point) Answer, I do not think so. The contract of Myers and Eppley was a perfectly fair one; and if Myers paid Eppley $50, as indicated by the testimony, in pursuance of his agreement, that he might perhaps have appropriated to much more advantage to himself by paying a lien creditor, it certainly did not affect that creditor’s rights, and therefore cannot deprive Myers of any equity he would otherwise be entitled to, as between him and that creditor, standing precisely in the position he occupied previous to Myers’s agreement. The payment to Eppley, made Bryson no better nor worse than he was before. The property in Myers’s possession was bound to the same extent it was in Eppley’s. We therefore answer this point in the negative. Read second, third and fourth points. Answer.—The jury will recollect the situation of these parties. Three judgments are entered of record against Eppley’s property; a portion of one is paid, (the interest for two years on Shoff’s) and all of Eberly’s,by Myers, the purchaser. Some time after these payments were made, he gets an assignment of the judgments from the plaintiffs, and produces them in court. The judgments were not satisfied on the record; they stood open against Eppley. The payments made by Myers, were made in pursuance of an agreement by which Bryson was not bound. He was made no worse by these judgments being transferred to Myers; and as between the plaintiffs in the judgments, Eppley and Myers, it was perfectly competent for them to keep these judgments in such a situation as would protect the person paying the money, if requisite to do so. The agreement under which Myers paid his money, has been destroyed by Bryson so far as he could do it, by using his lien to make his money, which he had a right to do. Can it then be, that the agreement is binding on Myers as between him and Bryson, after he has sold the property by virtue of his lien, for a sum not sufficient to reach his judgment, so as to enable him to turn round and claim the benefit of money paid by Myers, in pursuance of his and Eppley’s agreement, and thus deprive the purchaser of both the property bought, and the equitable right of being substituted in the room of prior judgment creditors whom he paid to protect himself against a subsequent one? I think not. Myers, as the testimony strikes me, was going on in good faith to comply' with his agreement. The plaintiffs in the judgments assented to take him for their payment; one actually received a portion of his debt, and the other the whole,-when it is discovered that Mr Bryson’s judgment was a lien against this property, and was not provided for in the agreement. The plaintiffs then assign their judgments, unsatisfied on the record, to Myers. Mr Bryson proceeds on his judgment, sells the property for $370, a sum not sufficient to much more than cover the prior judgments. Myers in pursuance of his assignment claims the money, to the amount of these judgments, and as I before intimated, we think he. has a perfect right to do so. So far as I can see it affects the rights of no one; it is a matter of indifference to Bryson, whether the plaintiffs in the judgments, or Myers, claim the money. Fifth point. — There could not. be such an agreement made afterwards, if it affected anybody else. But as I before stated, it cannot make any difference to Bryson whether the plaintiffs in. the judgments or their assignee claim the money. Bryson stood on his legal right, regardless of any arrangement between Eppley and Myers. He sold the property on his judgment for a sum not sufficient to reach it, and of course if we are right in law, there is nothing left for him. Charge excepted to by plaintiff, and this bill sealed.