On Petition eor Rehearing.
Black, J.The learned counsel for the appellees call attention again to a portion of their argument on the original hearing, and insist that James B. White did not assign to anyone a définite sum of the amount of the judgment, and gave no guaranty or warranty that his assignees, or any of them, would or could collect in full the parts of the judgment assigned by him to them, and did not assign to them, or any of them, the notes or the mortgages given to secure their payment, or any part or interest in the same, *685all of which, had been merged in the judgment; that an assignment of a judgment simply transfers the judgment to the assignee, and no liability as to the solvency of the judgment debtor attaches against the assignor, in the absence of fraud or express stipulation — referring again to authorities cited in the original brief for the appellees, some' of which were cited in our original opinion. It is conceded by counsel that the principle of law stated by us is abstractly correct, but they insist that, for such reasons, it is not applicable to this case.
Our opinion does not proceed upon the ground that the notes or the mortgages are not merged as causes of action in the judgment and decree of foreclosure, or that the statutory'personal liability of an assignor of promissory notes to his assignee exists in favor of the appellant against James B. White. Our statute (§617 Burns 1901) provides that all final judgments of the supreme and circuit courts for the recovery of money or costs shall be a lien upon the real estate and chattels real, liable to execution in the county where the judgment is rendered, for the space of ten years, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by an appeal or injunction, or by the death of the defendant, or by the agreement of the parties of record. It is provided by §687 Burns 1901 that after the lapse of ten years from the entry of judgment or issuing of .an execution, an execution can be issued only on leave of court upon motion. There was no judgment at law against Archange Godfrey, but there was a decree of foreclosure of the mortgage on her real estate, and no property of hers' except the mortgaged real estate could be subjected to payment of the judgment. There was a judgment at law against James R. Godfrey, the lien of which on his real estate, if he had real estate, was'not extinguished, and execution could have been obtained for the satisfaction of the judgment over at law. In this proceeding it was not sought to enforce the *686judgment over against the estate of James R. Godfrey, which was insolvent.
Moore’s Appeal, 92 Pa. St. 309, cited in a text-book to which counsel for the appellee refer, related to successive assignments of fractional parts of a judgment at law; the assignor not retaining any part of the judgment. The decision was .based on Donley v. Hays, 17 Serg. & Raw. 400, relating to successive assignments of parts of a mortgage debt, wherein a rule was announced not in agreement with the doctrine which obtains in this State. It is said in the opinion in Moore’s Appeal, supra: “We see no reason for applying a different rule in case 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.”
In the case at bar the court dealt with the subject of priorities as to the specific lien of the mortgage upon the mortgaged real estate alone. We were not called on to decide upon any question as to N the distribution of the proceeds of real estate sold or to be sold under execution on a judgment at law, as between the judgment plaintiff and assignees of parts of the judgment. The specific liens of the mortgages were not merged in the judgment of foreclosure. The continuing mortgage liens constituted a security for the judgment debt, and the assignment of parts of the judgment carried to the assignees this security. It is not contended that they have not priority over subsequent encumbrancers, but it is insisted that they should enjoy the benefit of their liens pro rata with the assignor, the judgment plaintiff. We think the doctrine of equity stated in our original opinion is applicable; that it would he inequitable to permit the assignor, where the property subject to the lien is not sufficient to pay the entire judgment, to be placed upon an equality Avith his assignees; but that he should be regarded as having transferred the specifiq *687lien of the mortgage to the extent needed to satisfy the assigned portion of the debt secured thereby, in preference to the portion retained and never assigned by him. Petition overruled.