The opinion of the court was delivered by
Gibson, C. J.In the bank of Pennsylvania v. Winger, 1 Rawle, 295, it was held, that, lien creditors are to look to the application of the fund at their peril, every thing which a due attention to their interest would have entitled them to receive, being considered as paid by operation of law as regards the debtor. So little was this principle doubted that some of the judges inclined to think it superior to the equity of a creditor who has but one fund, against a. prior creditor who might otherwiseresortto either of two; andit was barely held that it is not. But no one entertained theleastdoubt that where the creditor is entitled to satisfaction out of the proceeds of the land both at law and in equity, a loss shall be borne by him whose supineness occasioned it; much more so, where it has been produced by his positive agency. What then is the case here ? The defendant in a judgment on a recognizance for the price of land taken at a valuation in the Orphans’ Court, gives security to entitle himself to the stay of execution allowed by the act of assembly, after which the land is sold by the sheriff and the money brought into court,' The plaintiff and the other persons entitled to the estate of the decedent, appear before auditors appointed to report the state of the *242liens, and agree that the executors of a deceased brother who had died in the lifetime of their father, should pay his debts out of the estate, in consequence of which, these debts are reported and paid as liens, although indisputably not so in fact; and the proceeds of the sale being thus exhausted, the plaintiff proceeds on the recognizance given to obtain a stay of execution. Now, to say nothing of the rule which protects a surety, where the creditor has parted with the means of obtaining satisfaction from the principal, it is plain, here, that if the levy and sale were actual satisfaction ofthe original judgment, there could be no breach of the condition of the recognizance. But no one will pretend that the plaintiff could have had further recourse to the original debtor, had he not consented before the auditors, to apply the proceeds of his land to the payment of his deceased brother’s debts. But he had no right thus to consent, in prejudice of the rights of his surety for whose indemnity the land stood pledged by the lien of the judgment, to the benefit of which he would have become entitled by payment of the debt, but of which benefit he will be deprived, if he is compelled to pay it now, after the fruits of the lien have been swept away by a misapplication of them. The consent of the original defendant, then, being fraudulent, is to belaid out ofthe case, and the original judgment treated as if it were satisfied even as to him; and if so, it would be strange, if payment by him would not discharge the debt in favour of his surety. Any other construction would enable the children to manage matters so as not only to enjoy the full benefit of their father’s estate, but to cast the burthen of a deceased brother’s debts upon a stranger; and this monstrous result would be established by confirming the judgment of the court below. On the other points touched, but not pressed, we deem it unnecessary to express our opinion.
Rogers J. and Huston J. did not hear the argument, and took no part in the judgment.Judgment reversed.