
    (Delaware Co. O., Common Pleas Court.;
    May, 1897.
    GRACE M. FURGESON et al. v. MARY S. CACKLER, et al.
    After an order of sale of the land is-issued in a partition proceeding, an assignment, in writing, but not acknowledged or witnessed, by one of the co-tenants, party to the suit, of his interest in the proceeds, of the sale ordered, will be a valid transfer of the same as against subsequent judgment liens against such co-tenant.
   WICKHAM, J.

On the 24th day of October, 1896, the plaintiffs filed their petition in this court, praying for partition of certain real estate described therein. Such proceedings were had that on the 5th day of December, 1896, a decree of partition of the premises was taken, and on the 10th day of December, a writ of partition was issued. The commissioners appointed to partition the premises filed their report on the 19th of December, in which they say that they find that partition of the premises by metes and bounds cannot be had without manifest injury to the value thereof, and they returned an appraisement of the value of the property. On the 9th day of February, 1897, an order of sale was issued out of this court, and the property was duly advertised for sale. Pending the advertisement of the property for sale, Fremont Furgeson, one of the co-parceners and a party to the suit, on March 22, 1897, executed a certain writing as follows, omitting the title of the ease:

J. S. Jones & Sons, Attorneys for Stickney.

H. S. Culver, Attorney for Ella B. Furgeson.

“I hereby transfer and assign for a valuable consideration all my right, title and interest in the within case and in the subject matter thereof to Ella B. Furgeson.
“Signed, Fremont Furgeson.”

This writing was placed on the execution docket of this county in vol. 33, p. 4392, the number of this case.

On the 25th day of March, 1897, three days after the above mentioned paper' writing was executed and placed on the execution docket, one F. A. Stickney, recovered a judgment against Fremont Furgeson before a justice of the peace of Brown township, this county, and on the same day a transcript of said judgment was filed with the clerk of the court of this county, and thereby making, under the statutes, the judgment a lien upon all the real estate owned by Fremont Furgeson in the county.

Two days after the filing of the transcript, on March 27, the real estate was sold by the sheriff to Adeline Furgeson, and the sale confirmed on April 6, and the officer was ordered to execute a deed conveying the property to the purchaser, but distribution of the proceeds was reserved by the court to a future day of the present term of this court.

On application to the court, F. A. Stickney was made a party defendant, with leave to answer, and on April 29th, he filed his answer in this cause, setting-up the facts and asking the court to order payment of his judgment out of that portion of the proceeds of the sale that would have been distributed to Fremont Furgeson.

The right to have this judgment satisfied, as prayed by F. A. Stickney, is contested by the said Ella B. Furgeson, who claims the right to the proceeds by virtue of the assignment thereof to her by Fremont Furgeson.

The paper writing executed by Fremont Furgeson by which he attempted to assign all of his interest in the subject matter of the partition suit, purports to have been for a valuable consideration, and as the bona fides of the assignment is not questioned, we must conclude that a valuable consideration passed from the assignee to the assignor, and that the writing- had the effect it was intended to have, — namely, to transfer all of the right, title and interest of Fremont Furgeson to Ella B. Furgeson. It could not operate as a transfer of an interest in real estate,for the reason that it is not executed in accordance with the statute requiring a deed to convey an interest in realty to be signed, acknowledged, etc. But even if it liad all the requirements of a deed, it could not operate to pass the title to the grantee,as the subject matter was pendente lite, and any attempted transfer or conveyance would have been defeated by the subsequent sale of the real estate in partition. Cradlebaugh v. Pritchett, 8 Ohio St., 647. I think the writing is sufficient to convey to Ella B. Furgeson, all the right, title and interest of Fremont Furgeson, in his distributive portion of the proceeds of the sale, unless he was prevented from making such an assignment by reason of the judgment and lien of F. A. Stickney, and that question I think is satisfactorily answered in the case of Comer, et al. v. Dodson, et al, 22 Ohio St., 615.

That case was an action in partition, and one of the co-parceners and parties to the suit, after an order of sale had been issued, assigned certain portions of his.distributive part of the proceeds of the contemplated sale, and subsequent to the assignments and judgment was recovered against the assignor before a justice of the peace, and a transcript thereof filed in the office of the clerk of the court of the county.

In that case, as in this, the judgment creditors claimed the right to the judgment debtor’s distributive portion of the proceeds by virtue of their judgment and lien, but the court held that the assignees’ liens under their assignments being prior in point of time should be first paid out of the proceeds of the sale that would have gone to their assignor to the exclusion of his judgment creditors.

The answer of the defendant, F. A. Stickney, may be dismissed at his costs.  