Where there was a decree in the court below for the payment of a
certain sum of money, land being held as security, from which
decree an appeal was taken, the sureties upon the appeal bond are
not entitled to a pro rata
credit upon their
responsibility, the land having proved insufficient to pay the
amount of the decree.
The entire proceeds of the sale of the land must be deducted
from the amount of the decree, and the sureties upon the appeal
bond must be responsible for the balance.
This was a sequel to the case of Goodloe's Administrator v.
decided in this Court and reported in 53
U. S. 12
How. 24. The subsequent proceedings are stated
in the opinion of the Court.
Page 59 U. S. 107
MR. JUSTICE McLEAN delivered the opinion of the Court.
Pintard, on the 10th of April, 1847, obtained a decree against
Archibald Goodloe for $10,552, with ten percent interest per annum
on the amount decreed. There was also an order that a certain tract
of land should be sold, and the proceeds applied to the payment of
An appeal was taken from this decree to this Court, by which the
decree was affirmed. On the 20th of February, 1852, Pintard
commenced an action against Sessions and others on the appeal bond,
and at April term, 1853, obtained a judgment on the bond for the
penalty thereof, amounting to the sum of $12,000.
At the same time, Pintard procured an order for the sale of the
land specified in the decree, which was sold on the 15th of
November, 1852, for the sum of $8,025, which, after paying the
expense of the sale, left a balance of $7,525 as a credit on said
decree, as of the 15th of November, 1852. The interest, with the
sum decreed, up to that period, amounted to $16,877. The proceeds
of the sale of the land being deducted from this sum, leaves a
balance on the decree of $8,912, with interest from the 17th day of
April, 1853. The interest on this sum, up to the time judgment was
rendered on the appeal bond, makes the sum of $9,283, as the amount
to be collected on the judgment.
An execution was issued on the judgment the 14th of May, 1853,
for $12,000, with an endorsement of a credit of $2,717. This
execution was levied on a number of slaves, of the value of
$12,000, as the property of Sessions, the defendant. A delivery
bond was taken for the slaves, with Daniel H. Sessions as security,
but the slaves not being delivered on the day of the sale, an
execution was issued against principal and surety on the delivery
At this stage of the proceedings, a bill was filed by the
appellants complaining that the distribution which had been
Page 59 U. S. 108
of the proceeds of the sale of the land was inequitable, and
that such proceeds should be credited on the judgment entered upon
the appeal bond, pro rata,
and not exclusively on the
decree; and the complainants pray that Pintard may be decreed to
enter a credit upon the judgment as aforesaid, as of its date, for
the sum of $5,323.35, and that a perpetual injunction might be
granted to prevent him from collecting any more than the residue of
the judgment after deducting the above sum.
A temporary injunction was granted, Pintard filed his answer,
and, upon the final hearing, the injunction was dissolved and the
bill dismissed at the costs of the complainants. From this decree
an appeal was taken, and that brings the case before us.
The complainants in their bill allege no fraud nor mistake as a
ground of relief. They claim that the money received under the
decree for the sale of the land shall be applied pro rata
in the discharge of the judgment against them, and the balance of
the decree which remains after deducting the judgment. This would
give to them a credit on the judgment of $5,724, and that Pintard,
in claiming the whole amount of the judgment, seeks to recover from
them $3,568.99 more than in equity he is entitled to.
This claim of the appellants rests upon the ground that there
was a lien on the land sold by the original decree which operated
as an inducement to them to become sureties on the appeal bond. The
land, by the original decree, was directed to be sold; consequently
the proceeds of the sale could be applied only in discharge of the
decree. On what ground could the appellants claim a pro
distribution of this fund? They were bound to the extent
of the penalty of their bond, on which a judgment was entered. They
had a direct interest in the application of the proceeds of the
land to the payment of the original decree, including the interest
and costs, and so much as such payment reduced the original decree
below the amount of the judgment against them, they were entitled
to a credit on the judgment. The judgment has been so made, and the
credit entered, and beyond this they have no claim either equitable
In the argument, a subrogation of the land or its proceeds for
the benefit of complainants, is urged, but on what known principle
of equity does not satisfactorily appear. Had the appellants paid
the decree in full, they might have claimed a control over the land
decreed to be sold, or its proceeds. They made no payment, but
assert a general equity to have the fund applied pro rata
on their judgment. This would leave a large amount of the original
decree unsatisfied. On what ground could Pintard be subjected to
such a loss? He looked to the land and
Page 59 U. S. 109
the surety on the appeal bond, which more than covered his
decree, including interest and cost.
The condition of the appeal bond was "for the prosecution of
said appeal to effect, and to answer all damages and costs, if"
there should be a failure to make the plea good in the supreme
court. There was a failure to do this, and the penalty of the bond
was incurred. Whatever hardship may be in this case is common to
all sureties who incur responsibility and have money to pay. Beyond
that of a faithful application of the proceeds of the land in
payment of the decree, the appellants have no equity. They cannot
place themselves in the relation of two creditors having claims on
a common fund which may be distributed pro rata
them. Pintard has a claim on both funds -- first on the proceeds of
the land and second on the judgment entered on the appeal bond for
the satisfaction of the original decree.
The decree of the circuit court is affirmed with