delivered ■ the opinion of the court, October 2d 1882.
The auditor found as a fact that the judgment on which the appellant claims was given to hinder, delay and defraud the creditors of Longenecker, especially the appellee, and was therefore void as against the creditors sought to be defrauded. This finding was clearly justified by the evidence, and was confirmed by the court. The auditor further found that at the time the distress was made Longenecker was actually indebted to the appellees in the sum of $36,071.96 in excess of all credits. The warrant of distress issued for the sum of $6,028.23. The sum for distribution exclusive of all costs was $5,955.53. An amount of rent exceeding that sum had actually accrued within the year preceding, on the lease. Whether it had been paid depended on the manner of applying Longenecker’s credits. As the appellees had applied them, this sum remained unpaid for rent. By the method of application adopted by the auditor he found that only $2,312.63 remained unpaid as rent, and reported that sum. only for the appellee. The court disapproved of this conclusion, and gave the whole fund to the appellee. This presents the alleged error.
The well-recognized rule is, that a debtor has the right, at Iiis election, to make the appropriation of payments. If he omits it, the creditor may make it. If both omit it, the law will apply the payments according to its own notions of justice. It is too late for either party to claim a right to make the *602appropriation at the time or after a controversy has arisen in regard to the appropriations: United States v. Kirkpatrick, 9 Wheat. 720. When the aid of the law is invoked several rules have been declared. One, that the payment shall be applied in discharge of the earliest liabilities of a running account; another, that it shall be applied in the way most beneficial to the creditor, and therefore to the debt least secured, unless to the.prejudice of a surety : Pierce v. Sweet, 9 Casey 151.
In the present case the indebtedness outside of the lease was least secured. The appellee could not distrain for the collection of that, nor claim its payment out of the proceeds of a sheriff’s sale made by another. No question of surety exists in this case. The claim of the landlord does not even come in conflict with that of an honest creditor. In fact, however, the appellee did apply the credits on other indebtedness of Longenecker. This application was made in issuing the warrant of distress for the rent without applying the credits thereon. They were thei'eby applied on the other indebtedness in an unmistakable manner.
The auditor did not give duo weight to the equitable rights, and to the action of the creditor. In disregarding them, and in applying the credits on the earliest indebtedness, he arrived at an erroneous conclusion as to the sum due for rent.
The court therefore correctly decreed that the whole fund be paid to the appellee.
Decree affirmed and appeal dismissed at the costs of the appellant.