McGonigal v. Plummer

Alvey, J., delivered the opinion of the Court. The motion made to dismiss the appeal in this case cannot prevail. The delay in transmitting the record to this Court seems to be equally attributable to the appellees as to the appellant. By admission it is shewn that the delay in making up the record was in consequence of an agreement entered into by the parties, in regard to the selection of the papers that should form the transcript.

And as to the character of ⁴²⁷ the order appealed from, that forms no sufficient ground for dismissal. It has not, it is true, all the formalities usual in orders passed upon exceptions to auditor’s accounts, but it is unequivocal in its import, and finally decisive of the subject matter that was under consideration of the Court. The motion to dismiss must, therefore, be overruled. In deciding upon the merits of this appeal, the first and main question that presents itselfj and that which underlies all others, is whether, upon the sale and conveyance of the real estate by Postles and wife, to Joshua McGonigal, the vendor’s lien was preserved; for if such lien was waived or surrendered, there is, at once, an end of the controversy, so far as the claim of the appellant is supposed to have preference over the claims of other creditors of Joshua McGonigal.

This question depends upon the circumstances attending the sale and conveyance of the estate. The deed was made and the bond given on the 7th day of March, 1857. Appended to the deed, in addition to the usual formal acknowledgment of the receipt in full of the purchase money in the recital of it, there is a separate receipt, whereby the grantor, Thomas Pos-tles, acknowledged to have received of the grantee, McGoni-gal, the full amount of the consideration for the conveyance of the estate; thus apparently intending it to be understood that the estate conveyed was clear of the incumbrance of unpaid purchase money. There is nothing on the face of the bond to connect it with the conveyance, and to show that it related to the sale and purchase of the estate, but the parol evidence taken by the auditor shows that the bond was given for the unpaid purchase money.

It was executed by Joshua McGonigal, the purchaser, and the appellant, as surety. The amount of it was made payable in instalments of one and two years from the date of the purchase; and in its condition there is power given by the obligors to any attorney, to appear for them and confess judgment to the obligee, or his assigns, for the amount secured by the obligation. This bond was, on the 5th of Janu ⁴²⁸ ary, 1858, assigned by Postles to Win, X. Lockwood, and the latter afterwards assigned it to the appellant, to be “at his risk of collection." It is, as we understand it, because the appellant was surety in the bond, and has taken up the same by payment, that he now claims to stand in