Budd v. Olver

Supreme Court of Pennsylvania March 28, 1892

Budd v. Olver, 148 Pa. 194 (Pa. 1892)

23 A. 1105; 1892 Pa. LEXIS 946

Heydrick, McCollum, Paxson, Sterrett, Williams

Opinion of the Court

Per Curiam,

The order of subrogation, made by the court below, provided that the right of Matthew Clemo, executor of Joseph Wherry, deceased, to receive upon his judgment, against George D. -Olver, entered to No. 376, May T., 1888, the proceeds of the sale made by the sheriff, Nov. 28, 1890, of the land of George D. Olver, should not be affected by the decree. We think this limitation of the order was entirely right. Subrogation is a matter of grace, not of right, and is a creature of pure *198equity. It will never be decreed where it works injustice. In this case we have an equity of a surety, but it was a secret equity, unknown to the executor of Joseph Wherry. There was nothing upon the record to show that William A. Olver was a surety. In the absence of knowledge or notice of this-fact, Cierno had the right to rely upon the record as it stood at-the time of the sheriff’s sale.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

Reference

Cited By: 4 cases
Status: Published
Syllabus: Equity — Subrogation—Bights of third parties. Subrogation is a matter of grace, not of right, and is a creature of pure equity. It will never be decreed where it would work injustice to a third party. Sheriff’s sale — Beeord—Secret equities. In the absence of knowledge or notice of secret equities, a purchaser at ■sheriff’s sale has a right to rely upon the record, and such secret equities cannot subsequently be set up to his prejudice. • Attorney and client — Knowledge by attorney notnotice to client — Practice. A petition was presented to the court praying that petitioner be subrogated to the rights of plaintiff in a judgment which had been entered against him as surety. The prayer was for a rule upon defendant and other “ persons interested,” and the effect of the rule if made absolute would be to postpone the rights of another judgment creditor not named in the petition nor included except under the general term “persons interested.” The attorney of this latter party was present in court, and the petition was read in his hearing. Held, That this did not constitute notice to the party affected. The rules asked for were simply the process by which the parties were to be brought before the court, and for this purpose, especially as to an unnamed party, they possessed no efficacy until they were served.