103 Pa. 255 | Pa. | 1883
delivered the opinion of the court,
It is settled by a line of authorities that the assignees of the fractional parts of a debt secured by a mortgage, take pro rata upon distribution, in case the mortgaged premises does not sell for enough to pay the debt in full: Donley v. Hays, 17 S. & R. 400; Mohler’s Appeal, 5 Barr 418; Perry’s Appeal, 10 Harris 43; Hancock’s Appeal, 10 Casey 155. The learned judge of the court below was of opinion that the facts of this case did not bring it within the ruling of the authorities above cited and decreed distribution accordingly. Subsequently Moore’s Appeal, 11 Norris 309, was called to his attention, and under the impression that the latter case was a step in advance of the former ones, he reversed his previous ruling and decreed distribution pro rata.
The prior ruling was based upon the fact that the assignments were of definite sums and not of fractional parts of the mortgage, while in his later ruling the learned judge held that under Moore’s Appeal the form of the assignment is not material, unless it appear in the contract of assignment that the parties intended a different rule of distribution.
Wo do not regard Moore’s Appeal as an advance beyond the earlier cases or as inculcating any new doctrine. In that case a judgment amounting to $7,64Í.73 was assigned to seventeen different parties. The first sixteen assignments were of definite sums ; the seventeenth and last assignment was in these words : “ February 9th 1878 for a valuable consideration, I hereby assign the balance of this judgment unassigned, to Stella C. Moore
The question for our consideration is, whether it appears upon the face of appellants’ assignment that a preference was given and intended % At the time the assignment was executed by Edward Barney to Decker & Ayres, the mortgage which is the subject of contention, was the only asset undistributed belonging to the estate of Milan Ba'rney, deceased. There were also at that time unpaid claims against the estate, which, with expenses and other matters, so reduced the fund realized from the mortgage that the respective assignees thereof could not' be
It will thus be seen that this transaction, though in form an assignment of the one-eighth part of a mortgage debt, is in substance an assignment of the interest of the assignor in the estate of a deceased person. ¥e need not consider the bearing of this fact upon the case. Conceding it to be an assignment of a mortgage debt and nothing else, it does not come within the rule indicated in the cases commencing with Donley v. Hays and ending with Moore’s Appeal. It is manifest that Edward Barney could not claim anything out of the mortgage until Decker & Ayres had been paid in full. Such is the fair legal construction of the assignment. He assigns $2,650, and directs the administrators of the estate to pay the same with interest thereon. Such payment would have been good against Barney, no matter what loss there might have been on the mortgage, and it is good against his subsequent assignees, because
The case in hand is plainly distinguishable from those cited. The facts ai’e essentially different. It is apparent from the face of the papers that appellants’ assignment was intended to have priority and be paid in full. This works no harm to the appellees. They .took subject to appellants’ assignment and with notice thereof.
The decree is reversed at the cost of the appellees, and it is ordered that distribution be made in accordance with this opinion.