Opinion
10-13-1886
BURD v. KEYSER and others.
J. G. Shipman & Son, for complainant. Henry S. Harris, for defendant Keyser.
On bill to quiet title.
J. G. Shipman & Son, for complainant.
Henry S. Harris, for defendant Keyser.
BIRD, V. C. In 1872, Henry E. B. was indebted to several. J. L. had claims against him for over $3,000, which had been secured by bond and mortgage, and perfected by final decree; A. W. C. had a judgment for over $250; and Mrs. K. had a judgment for over $200. Mr. Keyser, the defendant, insists that at that same time he held a claim of over $1,700. The land of said Henry E. B. was advertised for sale by virtue of the executions issued upon said decrees and judgments, when he appliedto G. K., the defendant, for help in the premises, which G. K. undertook to render. There was a meeting of G. K., Henry E. B., his brother, Adam W. B., and John D. Snyder, since deceased. It is agreed that G. K. was not willing to aid Henry E. B. unless he could have collateral security for at least a portion of the amount which he should either pay or become liable for. The dispute is whether that collateral security was for so much in addition to all other security, or whether it was collateral only to the claims of J. L., A. W. C, and A. R. G. K. insists on the former, and the complainant on the latter.
The complainant insists that G. K. agreed to become responsible for the above-named claims, providing Henry E. B. would give him collateral security for the costs and interest due on said decrees up to April 1, 1872, and $250 of the amount of the A. W. C. judgment, and $200 of the amount due on the A. R. judgment. The complainant says that this was the understanding of the parties interested. These claims, i. e., the interest to April 1, 1872, on said decrees, and both of said judgments, amounted to $1,421.62. For this sum the said debtor, Henry E. B., Adam W. B., and John D. Snyder gave their promissory note to G. K., and at the same time G. K. gave J. L. his note for the whole amount of principal, interest, and costs due on said decrees, and accepted an assignment of said decrees from J. L. In 1874, and before these claims were all paid by Henry E. B., said G. K. recovered judgment on said note given by Henry E. B., Adam E. B., and John D. Snyder. After this judgment the said John D. Snyder died. The said J. L. became his administrator. On application, the orphans' court made an order for him to sell lands for the payment of debts. All the lands of the decedent were advertised and sold. The complainant, on being assured by J. L. that she would buy a clear title, purchased. Others also purchased. G. K. neither presented any claim to J. L. as such administrator, nor did he in any way warn purchasers that he relied upon the said lands to satisfy his judgment. In 1878, J. L., as such administrator, executed and delivered deeds to the purchasers for the lands sold, and the purchasers took possession. At the twenty-ninth April, 1885, G. K. had realized from the lands so incumbered, of the principal debtor, Henry E. B., sums equal to the whole amount of said judgment, less the sum of $450. This sum J. L. tendered to G. K. with the impression that G. K. had no first claim for any larger sum against the estate of John D. Snyder, or his lands. G. K. declined the tender, and issued execution upon his judgment, and advertised said lands, so conveyed to complainant and others, for sale. He claims the whole amount of said judgment. The complainant asks for injunction to restrain G. K. from proceeding, and to compel him to cancel his judgment as to John D. Snyder's estate on payment of said $450.
There is no doubt about the amount of cash G. K. has received. The question is whether it should be applied to this judgment or not, and the judgment ordered to be canceled upon the payment of the said $450. G. K., as above stated, maintains that he has a right to apply these moneys to other claims which he holds against Henry W. B., as the noteupon which he took judgment against Henry E. B., Adam W. B., and John D. Synder was general, and not confined to any certain claims.
Let us trace the main features of the case. The makers of said note, so far as appears, (according to the weight of testimony,) understood that the security was collateral to the lien already had by virtue of the decrees and the two judgments. The decrees and the judgments bound the lands of Henry E. B. In addition to this, Henry E. B. gave said note, with sureties, for the interest and costs on the decree, and for the amount of the judgments, as stated. All the money realized by said G. K. was out of these lands on which he had these liens by decrees and judgments against Henry E. B. It nowhere appears that he ever appropriated any of said moneys to the satisfaction of his other claims against Henry E. B., which had he done, I think would not be equitable for him to do in such case. But he did take a large amount of other securities from Henry E. B. for the other claims he held against him, which he still holds, or, at least, on which he has not realized; in other words, he has never accounted for these securities, as other creditors have a right to insist that he shall. These undisputed facts of themselves strongly incline the mind to the complainant's view of the case. And I think the defendant C. K. fastens himself to this same view in his explanation of what passed at the time the note was given. I give his own words when asked to tell about the taking of this note as collateral security:
"Well, there was Mrs. Kinnon's judgment and Mr. Creveling's, and some $900 of Mr. Lamerson, for interest and costs, and another account he had against Mr. Burd; and I told them that, if they gave me collateral security to the amount of them, (their claims,) then I would pay the whole debt; and I done so. Not for the amount, but to the amount: that was the word."
This effort to shift responsibility is entirely unavailing. Considering the subject-matter, I am unable to make any distinction, even in a technical sense, between the words "to"and "for." The interview was with reference to the liens of L. A. and R.; and, beyond refutation, a certain amount of these in dollars and cents was to be further secured. It seems to me quite idle to say that such security did not and could not apply to those claims, but was only applicable to other claims of G. K., because he said at the negotiations, "if they gave me collateral security to the amount," and not for the amount.
I will advise a decree according to the prayer of the bill, with costs.