Bryson v. Myers

1 Watts & Serg. 420

Opinion

The opinion of the Court was delivered by

Kennedy, J.

This was a feigned issue, ordered by the court below, for the purpose of determining the respective rights of the parties to receive the money arising from a judicial sale of a house and lot of ground, situate in Shireman’stown, as the property of George Eppley. The facts of the case, from the evidence, would appear to be, that George Eppley had been the owner of the house and lot anterior to the 29th of May 1837, and continued to be so until the 28th of September 1838, when he sold and convoyed the same by deed to Jacob Myers, the defendant. Previously, however, to this latter date, three judgments had been obtained against Eppley, which bound the house and lot at the time of sale. The first was entered on the 29th of May 1837, in favour of John Shoff, for two hundred and fifty dollars debt, with interest from the 23d of March preceding. The second, on the 1st of September 1837, in favour of Samuel Eberly, for forty-five dollars debt, with interest from the 8th of August 1837. And the third, on the 11th of August 1838, in favour of Thomas B. Bryson, the plaintiff in error, for sixty-six dollars debt, with interest from the 30th of July preceding. In treating for the purchase of the house and lot, Eppley told Myers of the judgments against him in favour of Shoff and Eberly, but said nothing of the judgment in favour of Bryson. It was finally agreed between them, that the price of the house and lot should be three hundred and eighty dollars ; that Myers should give his note to Eppley for that sum, payable on the 1st of April 1839; with an understanding, however, between them, that Myers should pay Shoff the amount of his judgment, and Eberly the amount of his, out of the $380, and having done so, do what he pleased with those judgments. And the surplus of the $380, he was to pay to Eppley himself. The note was accordingly given by Myers to Eppley, and Eppley thereupon made a deed of conveyance of the house and lot to Myers. About the 1st of April 1839-, Myers paid Shoff two years’ interest on his judgment, about the same time fifty dollars to Eppley, and not long afterwards paid Eberly the amount of his judgment in full, taking a receipt for the payment of it; but shortly thereafter, upon Myers coming to a knowledge of Bryson’s judgment, Eberly, as Eppley had agreed that Myers should do what he pleased with his judgment, assigned it to him. Shoff after-wards did the like with his judgment, upon his receiving from Myers the principal of his debt and some interest, which had accrued subsequently to the two years’ interest previously paid. After this had taken place, Bryson proceeded on his judgment, had the house and lot seized and taken in execution, condemned to sale, and sold to Myers by the sheriff for $370, who brought the money thus raised into court for distribution. Myers, as the assignee of the Shoff and Eberly judgments, claimed to retain as much of the money as would satisfy them, while Bryson, on the contrary, claimed to have his judgment paid first out of the same, the fund not being sufficient to satisfy the whole amount of the three judgments. Upon this state of facts, as they appeared to exist, without any doubt, from the evidence, the jury in conformity to the direction of the court, found in favour of Myers, the defendant below. The counsel of the plaintiff excepted to the charge of the court, and has assigned the same for error here.

Several points were submitted by the counsel of the plaintiff to the court below for their direction thereon to the jury. They may, however, all be comprised in the two following propositions: First, if Myers agreed to pay Eppley a price for the house and lot, sufficient in amount to satisfy all the judgments binding the same, he could not claim to protect himself against the payment of the fifty dollars to Eppley, which was part of the purchase money, under the assignment which he had obtained of the Shoff and Eberly judgments. Second, if Myers paid the judgments of Shoff and Eberly, or any part thereof, without requiring or taking an assignment thereof, at the time of doing so, and not until he discovered Bryson’s judgment afterwards, and did this without, any agreement made originally between Eppley and Myers, that the latter should take an assignment of them upon his paying them, the assignment taken by him could not avail against Bryson’s judgment. The court, however, in effect, instructed the jury, that if Eppley concealed the existence of Bryson’s judgment from Myers, at the time he sold to him, and afterwards until Myers had paid the fifty dollars to him, and had likewise paid a further portion of the price of the house and lot to Shoff and Eberly, on account of their judgments, Myers had, though without an original agreement to that effect, a right, after having been induced thus to pay by Eppley’s making him believe that there were no judgments binding the property, except Shoff’s and Eberly’s, to take an assignment of the judgments from Shoff and Eberly, and to claim, by virtue thereof, the amount of these judgments out of the money arising from the sheriff’s sale in preference to Bryson. In the direction thus given we can perceive no error. From the evidence, it is not very clear but what Myers, according to the original understanding that existed between him and Eppley, had a right to have an assignmentof theShoff andEberly judgments: for Eberly testifies that, “ Eppley was agreed Myers should do with the judgments as he pleased.” And Eppley himself testifies, “We (meaning himself and Myers) talked about the judgments. He was agreed to take the judgments. I was agreed to give them to him, and the men (meaning Shoff and Eberly) were agreed to take him for them. The judgments were to be his, not mine.” Now, it is not unreasonable to conclude from this testimony that Eppley was agreed from the first, that Myers, upon paying the judgments, should have the full benefit of them in any way that might be necessary to prevent Myers from being injured by paying the amount of them to Shoff and Eberly. If such were the understanding and agreement originally between Eppley and Myers, it is too plain to be questioned that the assignment of these judgments to Myers by the plaintiffs therein, in consideration of his having paid the amount thereof to them, would entitle him to stand in their shoes, and to receive the same money that would have been coming to them from the sheriff’s sale, had they not been paid, nor assigned their judgments. Suppose, however, there were no such original understanding between Eppley and Myers, it is perfectly manifest, from the evidence, that Myers was deceived by Eppley in regard to the number and the amount of the judgments that were liens upon the house and lot. If Eppley did not expressly tell Myers that there were but the two judgments, Shoff’s and Eberly’s, he studiously concealed from him the existence of Bryson’s judgment; and whether he did the one or the other, it was a fraud committed by him from which he ought and can not be permitted to claim any advantage. He by means of it got fifty dollars from Myers, the surplus of the three hundred and eighty dollars, the price of the house and lot, after deducting therefrom the aggregate of the Shoff and Eberly judgments; thus leaving the property in the hands of Myers liable to the payment of Bryson’s judgment, without enabling Myers to discharge it in any way whatever, or even letting him know of it. It can not be supposed that Myers would have consented to be placed in this situation, had Eppley only informed him beforehand of the Bryson judgment. Can it then be doubted that Myers, as against Eppley at least, after having been thus fraudulently induced to part with his money to Eppley, was not justified in taking the assignment of the judgments of Shoff and Eberly as he did, for the purpose of protecting himself against loss, so far as it might be practicable to use them fairly in effecting this object. It cannot be pretended that Eppley, after doing what he did, could have required Myers to enter satisfaction upon the judgments so assigned, until he had first either satisfied Bryson’s judgment, or obtained from Bryson a release of its lien upon the house and lot. Then why should Mr Bryson be considered in any better situation than Eppley himself. Although he be not chargeable with having participated in committing the fraud, yet there is no good reason why he should be permitted to claim a benefit from it, at the expense of Myers, as long as he parted with nothing to Myers, to enable or induce him to pay the judgments of prior date to his own. He had precisely the same security for his debt against Eppley after Myers obtained an assignment of the prior judgments that he had at any time before. It is not even pretended that he extended any indulgence to Eppley, in paying his debt, on account of the sale made to Myers of the house and lot. And, indeed, seeing no satisfaction was ever entered on Shoff’s and Eberly’s judgments, there would seem .to be no ground for raising a presumption that any such indulgenca ever could have been given. Neither do I believe that Brysois could have claimed a preference over those prior judgments, even if satisfaction had been entered upon them by the fraudulent procurement of Eppley, without his showing distinctly that he had given up or parted with some right, to which he was otherwise entitled, on account thereof. For unless he could show something of this sort, he could not be said to be prejudiced or placed in a worse situation by what was done, which cost him nothing, than he was in before. Why should he profit, then, without being in anywise injured, by the fraud of his debtor ?

Judgment affirmed.