Moore's Appeal , 92 Pa. 309 ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This is a case of distribution. The fund was raised by a sheriff’s. sale of real estate. The contention is between persons who by assignments hold a part of the same judgment. The portion held by the appellant is the part that was transferred last by the plain tiff in the judgment.

It was held in Donley v. Hays, 17 S. & R. 400, that when fractional parts of the same mortgage-debt were successively assigned to different persons and the proceeds of the mortgaged property were insufficient to pay them all, they take pro rata, and not in the order of their assignments. The authority of that case was recognised and affirmed in Perry’s Appeal, 10 Harris 43, and again in Hancock’s Appeal, 10 Casey 155. We see no reason for applying a different rule in ease of the assignment of different parts of the same judgment. Every equitable principle in regard to the application of the fund applies with equal force, whether the lien divested be a judgment or a mortgage.

If we understand the opinion of the court below the case was ruled on the language of the assignment made to the appellant. After the plaintiff m the judgment had assigned certain portions thereof to different persons, he assigned the residue to the appellant by the following assignment: “February 9th 1878; for a valuable consideration, I hereby assign the balance of this judgment unassigned, to Stella C. Moore, being the amount due and unpaid after the above and foregoing assignments.” The court construed this language to mean that the sums previously assigned should be fully paid, before’ the appellant was entitled to any of the proceeds. This we think was error. We discover nothing in the letter or in the spirit of the assignment reasonably leading to that conclusion. Describing the part assigned as “being the amount due and unpaid after the above and foregoing assignments” conveys no idea that the sums previously assigned shall first be paid. Its plain import is to assign all that part of the judgment not previously assigned. The reference to previous assignments is not to give them any preference in lien or payment, but merely for the purpose of declaring that the assignor transfers to the appellant all his remaining property in the judgment. The auditor found substantially as a fact, from parol evidence, that such was the intention of the parties to the assignment. We do not, however, think the case needs the aid of parol testimony to give the appellant a right to share, pro rata, with the persons who hold the parts previously assigned. The learned judge therefore erred in decreeing otherwise.

Decree reversed, and distribution directed to be made conformably with this opinion.