Shunk's Appeal

2 Pa. 304

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1845
• Status: Published

Opinion

Per Curiam.

— Nothing is plainer than that lien creditors may have recourse to the personal estate as the primary fund for their whole demand in the first instance, and subsequently to the land for the residue. Why should they not do so here ? Because it is said that the lien creditor last in the order of payment released his judgment in order to enable the trustees to make a title at private sale instead of pressing a sale by the sheriff, by which they affirm they may have been prejudiced. But as the fact is stated by the auditor, and it stands uncontradicted by evidence, this creditor did not release the judgment, but only his lien on the land, which he might well do without releasing his debt. That the sale by the trustees, instead of a sale by the sheriff, w7as prejudicial to the trustees, there is no proof, and the fact is not to be assumed. The opinion of the court is entirely satisfactory as to the principles involved, and it is unnecessary to add to it.

There has evidently been a clerical mistake both by the court and the auditor. The principle assumed, and it was the true one, would give the appellants $1100, yet they have a decree for no more than $800; and it is reversed so far as "to correct the error.

It is ordered, therefore, that their commission be $1100 80, and that the residue of the decree be affirmed.