White's Assigned Estate , 209 Pa. 627 ( 1904 )

Pee Cueiam,

The auditor found in the first place that the agreement of April 5, 1892, was not a sale, but merely an option, and that under it White never acquired any estate in the coal itself, ñor any interest on which the Pool judgments could attach as liens.

But secondly, the auditor, conceding for the sake of argument that White did take an equitable interest in the coal itself, found that he conveyed the whole of such interest to the Westmoreland Coal Co., on April 20, 1892, prior to the entry of the Pool judgments in Westmoreland county. In January, 1894, White assigned to certain parties the balance of purchase money due from the coal companies and in May, 1896, made a general assignment for the benefit of creditors. If therefore any surplus of purchase money remained in the hands of the coal company, not passing under the special assignment of 1894 it became an asset in the hands of the general assignee in 1896. Difficulties in regard to title and incumbrances led to litigation between the assignee and the coal company, which resulted under a decree of the common pleas No. 2 of Allegheny county in a conveyance by the coal company to the assignee in 1901. We have not the record of this suit before us (though part of the litigation came to this court and is reported as Robbins v. Coal' Co., 198 Pa. 301), but the auditor reports upon, it as follows : “ The same court of equity which by its decree changed the personal property belonging to the estate of James White, for the time being, into real property, directed E. E. Robbins, assignee, to hold in trust and dispose of said real property, for the satisfaction of certain claims specified in said decree.

“ The effect of that decree in equity was to place the title of said coal in the said Robbins as a trustee, to be held by him for the purpose of sale and distribution of proceeds thereof in money to and among the parties specified in said decree. It was not intended by that decree to convert the personal property into real estate for the purpose of changing the manner of distribution. The Court looked upon the fund as being personal property'—-of the same nature as when it was in the hands of the Westmoreland Coal Company—and treated it as such. It further recognized the fact that the assignee held said property subject to certain prior existing equities. Had the Court thought otherwise, it would not have attempted to suggest a distribution based on the assignment of January 15, 1894.” The auditor therefore reported that the fund now in controversy should be treated and .distributed as personalty. We are of opinion that this was the correct view.

The learned court passing oyer the interest of White, the judgment debtor, in the land at the time the judgments were entered, as “ a question that possibly need not be determined now ” reached the same conclusion as to the distribution upon the other facts in the case. After the conveyance to him under the decree of the common pleas above mentioned the assignee, without an order of court, made a sale of the coal from which the fund now in court was produced. On this the learned judge below said, “ The judgments were entered long prior to the sale and undoubtedly were liens on any real estate owned by James White at the time. The sale, however, was made by the assignee of James White without the order of any court. There was no application under the Act of Feb. 17, 1876, P. L. 4. The assignee made a conveyance with the same effect as if a sale had been made by the assignor himself. A sale by the judgment debtor would not disturb the liens. A sale by the assignee would have no greater effect. Admitting the judgments were liens, they were not discharged by the sale made by the assignee. And as they were not discharged, they are not entitled to share in the distribution.”

The decree entered is amply sustained on either of the ground's adopted by the auditor and the court.

Decree affirmed at costs of appellant.