Wright ex rel. Ensley v. Knepper , 1 Pa. 361 ( 1845 )

The opinion of the court was delivered by

Rogers, J.

The judgment on which suit was brought, was a lien on a lot now owned by Michael Ensley. Ensley became the purchaser of the judgment subsequently, and now seeks to enforce payment by means of a scire facias against William Leckey, the surety. This raises the question, whether the purchaser of a lot bound by a judgment against three persons, in which one of the debtors is a surety, by purchasing and taking an assignment of the judgment, discharges the surety pro tanto. We shall best arrive at a correct conclusion, by considering the situation of the surety before the assignment. If the creditor levies his debt by__sale of the premises on which the judgment is a lien, the surety is discharged from the debt. And this, so far as the surety is concerned, would be the duty of the creditor, a duty which would be enforced by a Court of Equity, who would compel him in the first place to go against the land. But although we have no such power in this state, yet we have "adopted to the fullest extent the principle, that equity considers that as done which ought to be done. Again, if the creditor levies the debt from the surety, the latter has a right to be substituted to all the securities of the principal, and by this means to an indemnity against the sale of .the' real property bound by the judg*’ ment. Nor has the purchaser any just right to complain, as he had constructive, if not actual notice of the lien, and of course purchased subject to it. He takes the property encumbered with the same equities as the original owner, and as regards him it is settled ; the surety upon payment of the debt is entitled to substitution against the principal. In Thorn v. Hartman, 7 Watts, 20, the general principle is ruled, that if the plaintiffs in the judgment become the owners of the land upon which the judgment is a lien, the lien becomes extinct by operation of law. Of the benefit of this principle to the extent of the value of the land, the surety cannot be deprived. But by purchasing the judgment and obtaining control of it, the plaintiff seeks to levy the debt from the surety, and thereby exempt the lot, of which he has reluctantly become the owner, from the lien of the judgment. The writ was issued against all the defendants, but issue is joined, and the trial had with the surety alone; and as the jury have found the value of the lot to be equal to the amount of the judgment, we are of opinion the assignee is not entitled to have his judgment revived. A Court of Chancery would restrain him from proceeding on his judgment, and of course, according to our practice, it is equitable defence to a scire facias.

Judgment affirmed.