Assigned Estate of Boltz

Lebanon County Court of Common Pleas

Assigned Estate of Boltz

19 A. 303, 133 Pa. 77, 1890 Pa. LEXIS 875

CourtPennsylvania Court of Common Pleas, Lebanon County

DecidedMarch 3, 1890

DocketNo. 247

StatusPublished

Cited by6 cases

This text of 19 A. 303 (Assigned Estate of Boltz) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Assigned Estate of Boltz, 19 A. 303, 133 Pa. 77, 1890 Pa. LEXIS 875 (Pa. Super. Ct. 1890).

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Opinion

Per Curiam:

The appellants were entitled to be subrogated to the rights of the county of Lebanon. They were the sureties upon the official bond of the county treasurer, and had made good his deficit in his accounts as such treasurer. When, therefore, the assigned estate of the insolvent treasurer came before the court for distribution, they had the right to claim a dividend out of the said estate, and it is immaterial whether there was a formal substitution or not. It is the right of substitution which is the substantial thing. The right of substitution being shown, and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor. This is settled by a bead-roll of authority. It is sufficient to refer to Fleming v. Beaver, 2 R. 128; Wright v. Sewing Machine Co., 82 Pa. 80.

The right of the appellants to claim a dividend upon the whole amount of the bond is another matter. The bond was in the sum of $90,000. The deficit of the county treasurer was $4,354.82. Had suit been brought upon the bond, and judgment entered thereon, the said judgment would have been for ,$90,000, with leave to take out execution for the said sum of $4,354.82. The latter is the real debt, and upon this s'um the appellants were entitled to a dividend out of the assigned estate. In the case of a voluntary assignment, the estate passes to the creditors in proportion to their respective claims. In the case of an ordinary bond, where the penalty is usually double the amount of the real debt, it is not pretended that the holder thereof can claim a dividend upon the penalty. All the cases say the dividend must be upon the debt: Miller’s Est., 82 Pa. 113; Graeff’s App., 79 Pa. 146; Dean’s App., 98 Pa. 101; Jordan’s App., 107 Pa. 75. Regarding the creditors of an assigned estate as the equitable owners thereof, the principle contended for would give the county of Lebanon an ownership in this estate to the extent of $90,000, whereas its claim is limited to a little over $4,000. We know of no rule of law which would give the county such an advantage over other creditors.

Decree affirmed, and the appeal dismissed, at the cost* of the appellants.

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Per Curiam:

The appellants were entitled to be subrogated to the rights of the county of Lebanon. They were the sureties upon the official bond of the county treasurer, and had made good his deficit in his accounts as such treasurer. When, therefore, the assigned estate of the insolvent treasurer came before the court for distribution, they had the right to claim a dividend out of the said estate, and it is immaterial whether there was a formal substitution or not. It is the right of substitution which is the substantial thing. The right of substitution being shown, and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor. This is settled by a bead-roll of authority. It is sufficient to refer to Fleming v. Beaver, 2 R. 128; Wright v. Sewing Machine Co., 82 Pa. 80.

The right of the appellants to claim a dividend upon the whole amount of the bond is another matter. The bond was in the sum of $90,000. The deficit of the county treasurer was $4,354.82. Had suit been brought upon the bond, and judgment entered thereon, the said judgment would have been for ,$90,000, with leave to take out execution for the said sum of $4,354.82. The latter is the real debt, and upon this s'um the appellants were entitled to a dividend out of the assigned estate. In the case of a voluntary assignment, the estate passes to the creditors in proportion to their respective claims. In the case of an ordinary bond, where the penalty is usually double the amount of the real debt, it is not pretended that the holder thereof can claim a dividend upon the penalty. All the cases say the dividend must be upon the debt: Miller’s Est., 82 Pa. 113; Graeff’s App., 79 Pa. 146; Dean’s App., 98 Pa. 101; Jordan’s App., 107 Pa. 75. Regarding the creditors of an assigned estate as the equitable owners thereof, the principle contended for would give the county of Lebanon an ownership in this estate to the extent of $90,000, whereas its claim is limited to a little over $4,000. We know of no rule of law which would give the county such an advantage over other creditors.

Decree affirmed, and the appeal dismissed, at the cost* of the appellants.

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19 A. 303, 133 Pa. 77, 1890 Pa. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/assigned-estate-of-boltz-pactcompllebano-1890.

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