Conley's Appeal

The opinion of the court was delivered, June 20th 1866, by

Agnew, J.

The title of Ensworth and Moore to the judgment of Warner’s Executors v. Underwood was not founded upon any actual assignment, but rests on a written receipt for sundry notes representing the consideration to be paid, containing an agreement to transfer the judgments upon the full payment of the notes. The agreement is express that the assignment shall not be formally made until they are paid in full, and that in the mean time the judgments shall remain as a security for payment of the consideration. It is very clear that this receipt and agreement are only a contract to sell, and not an absolute sale ; and so intended ; in order that the payment of the consideration should precede the actual transfer. The case of the appellants depends, therefore, upon a title, not at law, but in equity. They have no right to demand that tibe security, expressly agreed to be retained for the payment, shall be relinquished; and the fact that a lien was taken on the lands in Lycoming county as an additional security, does not strengthen their demand to surrender the principal security.

The real estate upon which the security for the payment of the Warner judgments rested was converted into money, not by the act of the appellees, but by that of a third party having a legal right to sell it. When the fund was brought into legal custody for distribution, the legal right of Warner’s executors still inhered in it. Their judgments were entitled to their share of the fund. The case stands precisely in the same condition in which every instance of conversion does, requiring the fund representing the estate to be awarded to the owner of the liens, notwithstanding the day of payment has not arrived; and justice is effectuated by a discount, if a discount be necessary. Here, however, the notes bear interest, and nothing is to be done but to calculate interest to the day of sale. Both law and equity require that the fund to the extent of the unpaid sum should be paid over to those who retain both the legal title and the equitable right to receive it, to that extent, as the security for the consideration of the contract to assign on full payment being made. Beyond this sum, however, the title in equity is in Ensworth and Moore, and the law will therefore treat it as actually vested.

Perceiving no error in the decree of the learned court below, it is accordingly affirmed; and the costs of the appeal are ordered to be paid by the respective appellants.