The opinion of the court was filed February 25, 1884.
— On the facts found by the auditor there is no error in this decree of distribution. The rule is well settled that where fractional parts of the same mortgage debt, or of a judgment lien, are successively assigned to different persons, and the proceeds of the property bound thereby are insufficient to pay all of them, they take pro rata. Those first assigned are not entitled to priority of payment. Moore’s Appeal, 11 Norris, 309. We discover nothing in the facts of the present case to prevent the application of that rule. No question was raised before the auditor, nor in the court below, in regard to the amount of costs entitled to be paid out of the fund. It is too late to raise it here, and the evidence furnished is insufficient to consider it intelligently.
Decree affirmed and appeal dismissed at the costs of the appellant.