
    ROSEBERRY’S APPEAL.
    An order for subrogation or contribution will not be made in a doubtful case.
    Where one purchases property subject to a lien, he has no right to have any part of the lien paid out of other property, also subject to the lien.
    Where the property of a partner is sold subject to the lien- of a partnership debt, the other partners will not be compelled to pay any part, unless the partnership affairs have been settled.
    Appeal from the Court of Common Pleas of Schuylkill County, No. 5½ January Term, 1874.
    The facts are fully stated in the opinion of the Court below which is as follows, delivered July 21, 1873, by
    Pershing, P. J.
    The material facts in the case are as follows:
    James T. Wren, John T. Noble and Matthew Rhoda in ¡July, 1870, made an agreement by which they became, partners, under the firm name of James Wren & Co., for the erection of a furnace for the Emaus Iron Company and for no other purpose. Of this firm Mr. Wren was the treasurer. The interest of Wren in this contract was one-half, whilst Noble and Rhoda jointly held the other half. Before the work was completed, viz., on October 16, 1871, this partnership was dissolved. By the stipulations of the agreement Noble and Rhoda were to pay all the debts due by, the firm of James Wren & Co. It was also agreed that the agreement dissolving the partnership should be a “final and complete settlement of the affairs of the partnership of James Wren & Co. and of all claims and demands of each partner upon the others arising out of the said partnership.” The settlement being made, as expressed in the agreement, “with the understanding that all monies and stocks received by said James Wren as treasurer of the firm of James Wren & Co. have been applied by him for the benefit of said firm, and any mistake or error in that particular was to be corrected, notwithstanding the settlement.” This was followed on October 18, 1871, by the receipt of Noble and Rhoda to James Wren for the books, papers, cash book, receipts, &c., of the firm of James Wren & Co., which, as the receipt states, were compared and found to be correct.
    On October 25, 1871, James Wren was adjudged a bankrupt.
    During the time the firm of James Wren and Co. was in existence, viz., on July 7, 1871, James Wren, John T. Noble and Matthew Rhoda gave their judgment obligation to the Miners’ Trust Company Bank of Pottsville for the sum of $15,000, which money was borrowed from the bank for the purposes of the partnership. Upon this, judgment was entered on July 10, 1871, in the Common Pleas of Schuylkill County to No. 206, September Term, 1871, the obligation having one year to run from its date. At the time this money was borrowed there was deposited with the Trust Company Bank, as collateral security for the payment of the loan, 302 shares of the stock of the Emaus Iron Company of the par value of $50 per share, all of which stock was issued in the name of James Wren & Co. and taken by them on account of their contract for the erection of the furnace for that company. James Wren testifies that this judgment was one of the partnership debts which Noble and Rhoda agreed to pay, and that upon its payment by them they were to receive the stock left as collateral security. Lewis C. Dougherty, assignee in bankruptcy, on March 23, 1872, sold three lots of ground, situate in Pottsville, as the property of James Wren, to John W. Roseberry, Esq., for the sum of $10,000, which sale was confirmed by the U. S. District Court. On September 3, 1872, Mr. Roseberry presented his petition to the Court, setting forth his purchase of said three lots of ground “in trust for others,” that at the time of the sale by the assignee the judgment of the Miners’ Trust Company Bank was a lien on said real estate, as also a lien on the real estate of John T. Noble and Matthew Rhoda; that he was informed and believed that iWren, Noble and Rhoda had given or assigned to said Trust Company Bank 151 shares of the Emaus Iron Co. of the par value of $15,100, as collateral security for the judgment held by the said bank; that in law and equity the real estate and collateral of the said John T. Noble and Matthew Rhoda should contribute their proper proportions towards the discharge of said judgment, and praying for a rule upon the said Miners’ Trust Company Bank to show cause “why they should hot levy upon and make sale of the real estate and collaterals liable to execution for the payment of said judgment in the proportion • in which the properties of John T. Noble and Matthew Rhoda shall in law or equity be liable to-contribute towards the discharge of the said judgment, otherwise upon the payment of such judgment to assign the same together with such collaterals for such uses as the Court may direct.”
    This application is based on the 9th Section of the Act of 22 April, 1856, Purd Dig., 827, PL 40 P. Laws, 534. This section provides that “whenever the real estate of several persons shall be subject to the lien of airy judgment to which they should by law or equity contribute, or to which one should have subrogation against another or others it shall be lawful for any having right to have contribution or subrogation, in case, of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right to obtain a rule upon the plaintiff to show cause why he should not levy upon and make sale of the real estate liable for the payment of the said judgment, in the proportion or in the succession, in which the properties of the several owners,, shall in law and equity be liable to contribute towards the discharge of the common incumbrance, otherwise upon the payment of such judgment, to assign the same for such uses as the Court may direct, and the Court shall have power to direct to what uses the said judgment shall be assigned,” &c.
    In deciding this application, we can assign Mr. Roseberry no better position than that occupied by James Wren at the date of the sale. It must be remembered that the judgment held by, the Miners’ Trust Company Bank was given by the members of a firm, for money borrowed for and used in the partnership business, as is shown by the evidence. Each partner is liable to pay the whole of the partnership debts to the last acre and the last shilling, says Lord Eldon. As between partners there can be neither contribution nor subrogation; Bailey, vs. Brownfield, 8 Harris, 41, is a case in point. It is held that where partners borrow money to be used in the business which they are jointly carrying on, it becomes a partnership fund, and no matter how they stand on the security given to the lender, they are accountable to one another as partners. The relation of principal and surety has no place between them. It is not the law that a partner after paying a partnership debt may be substituted to the rights of a creditor against his co-partner. If as between the joint debtors themselves, there is a superior obligation resting on one to pay the debt, the other after paying it may use the creditor’s security to obtain reimbursement.
    The reason why subrogation is not allowed to one partner as against his co-partners, or to one merely a joint debtor as against his creditors, is because that as between them there is no obligation resting upon one superior to that which rests upon the other; McCormick’s Administrator vs. Irwin, 11 C, hi.
    By the terms of the agreement dissolving the partnership, Noble and Rhoda agreed to pay the partnership debts of James Wren & Co., and thus took upon themselves the superior obligation, the effect of which was to fix themselves as-principals and Wren as the,surety, if the transaction between them stopped at this point. It is well settled that a binding agreement by which one co-partner or co-contractor assumes the debt or agrees to bear the whole burden of its payment in discharge of the rest, will give rise to the relation of principal and surety, and with it to the right of subrogation to the remedies of the creditor on the one hand, and to that of discharge on the other, if those remedies are wrongfully impaired or surrendered; i Leading Cases Equity, 153. But the right of subrogation or of contribution is subject to principles of law which are presented by the testimony taken on this rule. Where the original debt springs from a partnership transaction, there can be no substitution before a settlement of the partnership accounts, clearly evincing that the partner, whose estate has been taken in satisfaction for the partnership debts, in defeat of his individual creditors, was not indebted to his fellow, and that no countervailing equities existed in the latter. And the duty of showing this devolves on the party claiming to be substituted, in the clearest manner; Sterling vs. Bright-bill, 5 W., 229; Gearhart vs. Jordan, 1 Jones, 325. If the surety be also a debtor, he has no claim to be substituted. It has repeatedly been held that care must be taken to make no order of substitution or subrogation where injustice would be done to plaintiff or other parties whose interests are involved. In the case now before us, James Wren testifies that he complied with the conditions stated in the agreement for the dissolution of the firm of James Wren & Co., and that there has been a final settlement of the partnership business. In flat contradiction to this, John T. Noble testifies that Mr. Wren has not complied with the conditions on which the dissolution was to be a settlement of their partnership transactions; that he is indebted on these transactions to Noble and Rhoda to the amount of about $9,000, and in effect that the consideration upon which Noble and Rhoda agreed to pay the firm debts of James Wren & Co. has failed. Here is a conflict in the evidence which cannot be decided one way or the other in this proceeding. But until it was certain if James Wren himself was making this application; that the joint business in which he and Noble and Rhoda were engaged, has been settled, and that he (Wren) was not indebted as alleged in the deposition of Noble, it is clear from all the authorities that he could demand neither contribution nor substitution. To allow either might be to destroy countervailing equities existing in his former partners.
    But there is another ground which we think fatal to this, application. Mr. Roseberry purchased the real estate of James Wren subject to the judgment of the Miners’ Trust Company Bank. Assignees in bankruptcy take the property of the bankrupt, subject to the liens legally and bona fide existing against him. James on Bankruptcy, 43. The 14th Section of the bankrupt law authorizes the assignee to sell the real estate subject to a mortgage lien or other incumbrance. An assignee in bankruptcy succeeds to all the rights and interests of the bankrupt, to precisely the same extent that the bankrupt himself had, subject to and affected by all the equities, liens and incumbrances exisiting against them in the hands of the bankrupt, and the same rule applies to the purchaser at assignee’s sale of the bankrupt’s effects. Strong vs. Clawson, 5 Gilman, 346. It is part of the evidence that at the sale made by the assignee in bankruptcy of Mr. Wren, verbal and written notice was given of the existence of the judgment of the Miners’ Trust Company Bank. Mr. Roseberry acknowledges it to be a subsisting lien in his petition. That his purchase was made subject to this judgment is clear. What, then, is the legal position of the purchaser? The authorities seem to answer this question fully. One who purchases subject to a prior mortgage and pays it off, does no more than his duty. Taking an assignment. is fruitless for the purpose of collecting the amount from the mortgagor’s assigned estate. Cooley’s Appeal, 1 Grant, 401. In Hansell vs. Lutz, 8 Harris, 284, the Court says: “The land was sold by the Sheriff charged with the payment of the mortgage. How would this be usually and naturally understood? Unquestionably that the purchaser shall discharge the mortgage, and not that he will do it, if the mortgagor fails to pay his bond. On this account the land always sells for at least the measure of the mortgage debt less.than its value. Hence it ¡follows that the purchaser in thus buying the land undertakes the duty of paying the mortgage, not personally, but so far as the land is sufficient for that purpose. It follows also that if the obligor pay the debt he may claim subrogation to the mortgagee, else the purchaser would unjustly hold the land without having paid the entire consideration.” This is explicit. Mr. Roseberry has virtually retained purchase money to the amount of this judgment. In paying it he succeeds to no right of contribution or substitution. He stands in no better attitude than if he had bought this real estate at private 'sale with an obligation on his part to pay the liens against it.
    Rule discharged.
    , Roseberry then took out an appeal, assigning the discharge •of the rule as error.
    
      J. W. Ryon and Lin Bartholomew, Esqs., for the appellant,
    •contended that the partnership had been settled, and even if not ■so, the Court should have directed an issue to try any disputed question of fact, and not have discharged the rule. Second, ¡that Noble and Rhoda had agreed to pay the partnership debts, and the purchaser of Wren’s property acquired Wren’s rights to have this debt paid by Noble and Rhoda.
    For Noble and Rhoda, it was argued that if there was anything due by, them to James Wren it must be paid to Dougherty, his assignee; not to a purchaser of Wren’s real estate. Roseberry bought subject to the judgment and cannot complain if called upon to pay it; Hansell vs Lutz, 8 Harris, 284; Cooley’s Appeal, 1 Grant, 401.
    The Act of 1856 applies only to real estate; hence the shares <of the Emaus Iron Co. cannot be sold to contribute to pay this judgment. Subrogation is not allowed between partners,; Sterling vs. Brightbill, 5 W., 229; Gearhart vs. Jordan, 1 Jones, 325; Bailey vs. Brownfield, 8 Harris, 41.
   The judgment was affirmed on March 12, 1874, in'the following opinion:

Per Curiam.

If this case stood alone on the argument of dissolution between Wren and his partners, Noble and Rhoda, Wren would be entitled to an order to compel the sale of their property before the sale of his. But according to the evidence Wren ■ seems to be their debtor for moneys not accounted for and falling within the exception in the last clause of the agreement of dissolution. His position is changed by his relation as a debtor to them. Roseberry, who purchased Wren’s title at a bankrupt sale, is affected also by the fact that he seems to have bought subject to the judgment of the Miners’ Trust ■Company. Bank, and therefore paid that much less for the lots he bought. Without determining these questions we can ■only say that Roseberry’s title to equitable interference under the Act of April 22, 1856, P. Laws 534, either in the sale, or by way of contribution, is too uncertain to require us to pronounce the refusal of the Court below to make the rule absolute to be error.

Order affirmed.  