
    McCURDY vs. CONNER.
    Bail for stay of execution is not entitled to subrogation against a terre tenant or creditors.
    Error to Common Pleas of Westmoreland County, No. 238 October and November Term, 1874.
    ¡This was a sou fa. sur. purchase money mortgage, brought by McCurdy, to use of D. E. Steck; against Conner, and Joseph D. Shepley, terre tenant.
    
      \ ¡John McCurdy was the owner of a tract of land in Fairfield township. On October 6th, 1864, he conveyed the land to Samuel Conner. On the same day Conner executed to McCurdy and wife a mortgage for $2,203.99, payable in four annual payments, r with interest from December 1st, 1864. On December 15th, 1864, \ Conner conveyed the same tract of land to Gad. H. Tower for l $4,000, the land being subject to the mortgage given by Conner to McCurdy and wife, but no mortgage or other security was given to Conner for any part of the purchase money by Tower. On the 30th o1 March, Tower conveyed the same land to J. D. Shepley, for $5,810, the money coming from Conner to McCurdy ) still remaining unpaid. Same day the deed was made to Shep- ( ley he executed a mortgage to Tower for $3,810, payable as fol- ^ lows: $397,. payable April 1st, 1868; $420, April 1st, 1869; j $442.50, April 1st, 1870; $465, April 1st, 1871; $480, April 1st, j 1872; $510, April 1st, 1873; $532.50, April 1st, 1874; $55, April } 1st, 1875. Shepley paid McCurdy $992.70 in three payments, i December 9th, 1867, Tower gave his check to McClure Ross, at-j torney for McCurdy and wife, for $1.500 on a Pittsburgh bank, j which, when paid, Ross agreed should be credited on the McCurdy \ mortgage. This cheek was protested for non-payment on Janu- ) ary 2nd, 1868. April 16th, 1870, a scire facias was issued on the | mortgage of Connor to McCurdy, which is the action nowin this i court. In February, 1869, McClure Ross brought action on the \ case in assumpsit against Tower and recovered $1',610.53. Tower \ procured David Simpson to enter into a recognizance for stay of ) execution. In May, 1870, a scire facias was issued against Simpj son, and judgment had against him, and levy made on his prop-J erty. Before the return day-of the writ and before day of sale j of Simpson’s property, McClure Ross, attorney for McCurdy and wife, agreed with Simpson that if he could secure some friend to pay off the execution, he would transfer to him the money due on the mortgage from Connor to McCurdy. Such an arrangement; was then made, and the balance on the mortgage was transferred to D. F. Steck, who was substituted in place of Simpson. On trial the court Jbelow charged .the jury that these facts amounted to a payment of the mortgage, and declined to permit plaintiff’s counsel to argue the questions of fact before the jury. The result was that the party who had an assignment of mortgage that Tower held against Shepley, was enabled to recover from Shepley the balance due on his mortgage to Tower; on the ground that the McCurdy mortgage, which was the first lien against the land embraced in the mortgage from Shepley to Tower, was satisfied by the protested check and proceedings thereon. In this the plaintiff claims an error was made by the court.
    
      H. D. Foster, Esq., for plaintiff in error argued:
    That the payment by the surety should not have been held to satisfy the mortgage; Cottrell’s Appeal, 11 Harris 294. Actual payment does not always discharge the judgment in equity; McCormicks, Ad., vs. Irwin, 11 Casey, 111. The taking a note, and receiving the balance on it, did not necessarily discharge the mortgage, Reed vs. Defebaugh, 12 Harris, 495. McIntyre vs. Kennedy, 5 Casey 448. Shaw vs. Church, 3 Wright, 226. Potter vs. McCoy, 2 Casey, 458.
    Subrogation should have been allowed in this case; Kelchner vs. Forney, 5 Casey, 47. Mosier’s Appeal, 6 P. F. S., 76.
    
      Edgar Cowan, Esq., contra.
    
   Tbe decision of the court below was affirmed by the Supreme Court on November 2, 1874, in the following opinion :

Per Curiam.

Steck, the assignee of McCurdy’s mortgage, lent the money to Simpson. He testified that he had no interest in the suit — that Simpson was the interested party — that the money paid on the mortgage was to be paid on the judgment he took from Simpson for the money thus lent, and the judgment was assigned to Lloyd, Hull & Co , and the money, when paid on the mortgage, was to be applied to this judgment. It is also admitted in the statement and counter-statement that this suit on the mortgage is for the benefit of Simpson. Thus the controversy is really between Simpson, who had become bail for stay of execution for Gad. H. Tower, and Bryant, the assignee of Gad H. Tower, of a mortgage Tower had taken from Shepley (the terre-tenant) for the purchase money of the premises mortgaged by Conner to McCurdy — Tower having bought of Conner and assumed the payment of Conner’s mortgage to McCurdy, and afterward having sold to Shepley without notice of the Conner mortgage. Simpson paid the money he obtained from Steck to McClure, and thus obtained the assignment of the Conner mortgage by McClure to Steck. This was done by Simpson under the stress of an execution on a judgment of McClure upon Tower’s check to be applied to the mortgage. The real question is, therefore, whether Simpson’s equity ? as bail for Tower, is superior to the equity of Shepley, the terretenant, to whom Tower was liable on his covenant against incumbrances. Bail for stay of execution does not stand in equal equity with third persons whose rights accrued before he became bail. The reason given is, that bail who intervenes in order to hinder execution, has no equity against others who may be injured by arresting the execution. But for this the debt might be paid by the debtor, or out of his property: Armstrong’s Appeal, 5 W. & S. 356. Then the case stands thus : Sh'epley, by his purchase of the premises encumbered by the McClure mortgage, which was Tower’s own debt by assumption, was éntitled to be protected by Tower, who was liable to him on the covenant in his deed against incumbrances. This was in 1867, and long before Simpson became bail. Tower had also assigned the mortgage he had taken of Shepley to Bryant, an innocent purchaser. This mortgage not being Tower’s, if Shepley asserted his right to defalk the McCurdy mortgage against his own, the loss would fall on Bryant. Now, Simpson, the bail of Tower for the stay, prevented the payment of Tower’s judgment to McCurdy, which would have satisfied McCurdy’s mortgage against Conner. He could assert his equity, therefore, only against Tower, and not against Shepley and Bryant, who stood before Tower and on a higher grade of equity. Tower being liable to both by a prior liability, stood below both and bound to satisfy the McCurdy mortgage. It is evident, therefore, that Simpson, as bail for Tower, had no equity to keep the McCurdy mortgage on foot to the prejudice of either Shepley or Bryánt, and could not, therefore be permitted to take an assignment for that purpose in his own name, or of another for his use, upon the payment of money by him as bail, which would, by satisfying the judgment, also satisfy the mortgage. In effect, therefore, the money paid by Simpson to McClure was payment of the mortgage.

Judgment 'affirmed.  