
    Sanders v. Cook.
    
      Execution—Injunction.—A recovered a judgment against two persons. The property of one has passed by purchase, under a junior lien, to another person, and the property of the other to another person by purchase. A seeks to enforce payment of the judgment by levy and sale of the property of the former, who seeks to enjoin the sale thereof until the property of the latter shall have been exhausted.
    
      Held, that such sale ought not to be enjoined, because the principle of equity, authorizing the marshaling of securities in certain eases, does not apply in such a case.
    APPEAL from the Bartholomew Circuit Court.
   Hanna, J.

This was a proceeding to enjoin a sale of certain lands on execution. Injunction granted.

It appears by proper averments in the complaint, by the appellee, that on the 21st day of April, 1857, one Sinker recovered a joint judgment against Barmes, Wonderly, Witt, Davis, Witt, Norton and Whippe, for, &c., which was, on August 23d, 1860, assigned to said Cook; that on the 28th of July, 1862, an execution was issued on said judgment, and levied on the property in dispute, as the property of said Barmes, and the sheriff threatens, &c.; that on the 2d of January, 1858, one Spaugh sued out an attachment against the property of said Barmes, which was levied upon said real estate as the property of said Barmes; that on the 24th of January, 1859, judgment w-as recovered by said Spaugh against said Barmes, and an order for the sale of said attached property; that in pursuance thereof, said land was, on the 3d day of December, 1859, sold to Spaugh, who, on the 20th day of February, 1860, sold the same to the complainant; that none of said named defendants, in the prior judgment, had any property subject to execution, except said Barmes and Wonderly; that the latter had, until the 1st day of January, 1861, property in said county amply sufficient to pay said debt, to-wit: real estate; that in 1861 or 1862, Barmes died utterly insolvent. Prayer that the said property of Wonderly, and any other propez-ty of said Barmes, subject to said execution, may be fiz’st resorted to.

A demurrer to the complaint was overruled. It assigned for canse that Wonderly ought to be made a party, and that it did not state facts sufficient, &e.

An answer was filed, showing that several executions had issued, and been levied upon various articles of personal property, after the rendition of the judgment, and before the property was seized under the attachment, and that said Sinker and the said Cook used due diligence to collect said debt; that prior to tbe issuing of said attachment, the defendants in said elder judgment had, among themselves, made an agreement, by which said Barmes was to pay the same, the other defendants paying him their contributive share; that Wonderly has no property subject to execution, other than the lands described, which he transferred on the 1st of January, 1861, to a purchaser. Then it appears that the said Sinker judgment was a lien on property of Barmes and Wonderly, and.the question is, to the property of whom shall the holder of said judgment resort for satisfaction thereof. The property that was owned by Barmes has passed to a purchaser under a junior lien—the plaintiff in this case; that of Wonderly has passed to a third person by purchase.

The ground upon which the appellee claims relief is, that as the plaintiff in the Sinker judgment had a lien upon the property of both Barmes and Wonderly, either of which was sufficient, and Spaugh had a lien, which he had enforced, upon that of Barmes only, therefore the former should be compelled to resort to that which the latter could not reach. This is placed upon the ground that the holder, under the Spaugh judgment, is an innocent purchaser. This would be in accordance with the rule in equity, that where one creditor could look to two funds of a debtor, and another creditor could look to but one of said funds, the former might be compelled to exhaust that which the latter could not reach before he could seize upon the other, which the latter could reach. ¥e say the relief prayed would be in accordance with this equitable doctrine, if the same is applicable to the facts stated. But it is not, for the reason that in this instance there was not a common debtor against, whom different creditors had claims, which must be the case to entitle either to have the securities or funds marshaled It is said that “this may be illustrated by supposing the case of a joint debt due to one creditor by two persons, and a several debt due by one of them to.another creditor. .. In such a case, if the joint creditor obtains a judgment against the joint debtors, and the several creditor obtains a judgment against his own several debtoi’, a Court of equity will not compel the joint creditor to resort to the funds of one of the joint debtors, so as to leave the second judgment in full force against the funds of the other several debtor. At least it will not do so, unless it should appear that the debt, though joint in form, ough’t to be paid by one of the debtors only, or there should be some other supervening equity.” 1 Story Eq. sec. 642.

Francis T. Hard, for the appellant,

Balfh Hill, for the appellee.

The case at bar falls exactly within the proposition here stated. It does not appear that’ Wonderly should pay the debt rather than Barmes, as between themselves. In the answer the reverse is averred. But one thing is shown which has the semblance of a supervening equity, and that is, the death and insolvency of Barmes. This we do not look upon as sufficient to authorize interposition. The purchaser, under the attachment proceedings, took his chances in regard to the prior lien that is now being enforced. And he can not be regarded as an innocent purchaser, in the legal sense of that term, for the law made the record of the senior judgment constructive notice to him and all others. It must be supposed that he looked to the fact that the holder of that lien had a right, by virtue of his contract so far as was shown, to proceed against the property of either or both of the joint debtors, until he was satisfied.' And we do not discern any laches upon his part by which he has forfeited that right. Mor do we see that he can be compelled by one, not a creditor of the common debtor, to surrender any of his rights under his contract, because one of his debtors may have become insolvent.

Ber Curiam.

The judgment is reversed, with costs. Cause remanded,  