This seems to us a very plain case and there is no need to elaborate it. The facts of the case and the respective contentions of the parties are stated in the opinion filed in the case by the learned Judge below. There are two questions in the case. First is whether the appellee Bond was a proper party to the proceedings below. Of this there would seem to be no room for doubt. The proceedings were instituted on behalf of all the creditors of James S. Calder. Bond was shown beyond question to have been a creditor. As a creditor too he was shown to have an interest in maintaining the priority of the judgment of Frank H. Jacobs. It was but a matter of course to make him a party to the proceedings and there could be no prejudice to anybody therefore in the nunc pro tunc order of the Court below passed on the 14th of September, 1904. The other question is as to the priority of the judgment of Frank H. Jacobs over those of the junior judgment creditors who are seeking to defeat this priority. There *Page 697 can be no doubt of the legal priority of this judgment over those of the judgment creditors who are thus seeking to postpone it to their own. This legal priority can only be defeated by the junior encumbrancers showing some equity which the Court ought to and can allow to have that effect. No such equity has been shown. On the contrary there is a strong equity against the position of these junior lienors that the judgment of Jacobs ought to be postponed to theirs. To uphold the contention of the junior lienors that Jacobs ought to be compelled to resort to the mortgage upon the property of the appellee, Bond, would be grossly inequitable. The debt represented by the mortgage is really Calder's debt which he ought to have paid and promised to pay; and simultaneously with the execution of the mortgage Calder endorsed upon it his guarantee to pay it. When therefore he confessed the judgment which Frank H. Jacobs now holds for the same debt, he did so for a meritorious consideration. The judgment was really for his own debt. He so testifies; and that, and other testimony, establishes this beyond question. When the judgment held by Jacobs is paid the mortgage debt will be extinguished or relieved to the extent that the proceeds of the judgment will pay that debt and interest. It is not perceived what equity parties standing merely in the position of junior lienors, can have against the judgment sought here to be postponed to theirs, under the circumstances which the case develops. For a better understanding of the case as appearing from the facts in the Court below the opinion of that Court will be included in the report of the case. The decree below will be affirmed.
Decree affirmed with costs to the appellees.
(Decided June 22d 1905.) *Page 698