Mohler's Appeal

5 Pa. 418 | Pa. | 1846

Rogers, J.

It is settled by a series of decisions, that on a sheriff’s sale of land, all the liens on the land due at the time of the sale, when they are capable of being reduced to a certainty, are entitled to payment out of the proceeds; Reed v. Reed, 1 Watts & Serg. 239; Bantleon v. Smith, 2 Binn. 146; Hellman v. Hellman, 4 Rawle, 440; 6 Watts, 167. The only question that remains is, was the court right in ordering the money to be paid to the assignee of the judgment, in exclusion of the right of Catherine Mohler, the assignor ? And this depends on the effect of the entry on the record: “These judgments stand for the use of Martin Frey.”

In order to prevent mistakes as to the principle now decided, we agree that the entry amounts to a common assignment of the judgment, with all its incidents, and although made by the attorney, yet it is entitled to the same consideration as if made by the principal. So the word “judgments,” in the plural, refer to the judgments against the obligor and the terre-tenants, which were separately rendered. This point is virtually ruled in Donley v. Hays, 17 Serg. & Rawle, 400. This was the case of a mortgage, accompanied with eight bonds, payable at different times, five of which the holder assigned to different persons at different times, retaining three of them himself. The mortgaged premises were sold on an execution by the sheriff against the mortgagor, and the fund arising from the sale having fallen short of the whole mortgaged debt, it was decided that the respective assignees and the mortgagee were entitled to a jpro rata dividend of the proceeds, according to the amount of the bonds held by each. That case is identical with the present, and if law, it rules this, for the assignor here answers to the mortgagee there, and the assignment being the same, if the mortgagee was entitled to a pro rata dividend, on the same principle the assignor is entitled to a share of the proceeds of the sale. Donley v. Hays was decided by a divided court, the Chief Justice dissenting, and has since been questioned by a distinguished judge, in Cowden’s Estate, 1 Barr, 278. This has caused us to reconsider the point, and we aver, on further examination of opinion, the case was correctly ruled. The point is part of the law of the contract. It is in vain to urge that, as between the assignor and assignee, there is an equity or moral obligation, if, as is there ruled, and we think correctly, that it was the intention of the parties to participate pari passu in the proceeds of the sale. This is the reasoning of Mr. Justice Tod, who delivered the opinion of the court, to which we 'subscribe. It is difficult to believe that Catherine Mohler intended to postpone her rights in the prior suit in favour of the assignee, for if so, why use terms which import directly the reverse ? for it is well settled that the word “ assigns,” in Pennsylvania, does not import a guarantee, which this in effect would be, if we adopt the decision of the District Court. And this construction not only supports the intention of the parties, but the equity of the case; for, although in this it may be that the whole amount due was paid by the assignee, yet in a majority of cases much less is paid. Besides, in the case stated, reference is made to the first suit, and care is taken to prevent its being considered and taken as part of the case stated, and a proviso is inserted that it shall not be in any manner prejudiced. But although this is some indication of the views of the parties, yet we do not put the case on that ground, but on the general intention arising from the use of the word “assigns,” or what we consider as equivalent, showing a determination not to* guaranty the money called for by the bond, thereby evincing any thing but a design to postpone her rights under the prior suit, or for such arrearages as may fall due at the time of the sale. Whenever the parties intend differently, a stipulation to that effect should be inserted in the contract, and we are induced to believe that when such is the design, in nine cases out of ten it is expressly provided for. We therefore see no difficulty in maintaining the case on legal principles, and as to the equity which it is supposed the assignee has, that cannot be urged in contradiction to the argument.

From this view of the case it is also manifest that the doctrine of contribution has nothing to do with the case. It seems to mé that all the doubt which has arisen, is caused by losing sight of the difference in the law in this state and others as to the legal effect of a common assignment, for I grant that had the assignor guarantied the payment of the money, the assignee would be entitled to a preference. Had the assignment contained a provision such as is now contended to be its legal effect, it is impossible to tell with certainty whether Catherine Mohler would have ratified the act of her attorney, although the assignee may have paid the full amount called for by the bond. Yarious considerations which may be easily imagined, might influence her to decline any such agreement. At any rate, we cannot safely allow indefinite and vague notions of a supposed equity to overrule or in any way affect the contract of the parties.

The court therefore reverse the decision of the District Court, and order that the sum in court be divided pari passu, including the arrearages due at the time of sale.