
    Cornelius Vanhouten vs. John G. Reily and Henry Cage, Administrators of Samuel Reily, deceased.
    A judgment may be assigned by the judgment creditor to a third party; by such assignment the beneficial interest in the judgment will pass to the assignee, who will have the right to use the name of the judgment creditor to enforce the execution.
    Where a judgment has been obtained against the administrators of a deceased person, and they, without paying the judgment, proceed to distribute the deceased’s property among his legal distributees, until it is rall divided, the judgment creditor may levy his execution on any of the property thus distributed ; and that too though the judgment should be assigned, and at the time of the levy belong to one of the distributees.
    In such case, though there might be equities among the several distributees, as to the proportions in which they shall contribute to the payment of the claim, those equities cannot be settled in a court of law on a motion to quash the execution.
    In error, from the circuit court of Wilkinson county; Hon. C. C. Cage, judge.
    On the 20th November, 1833, Cornelius Vanhouten recovered judgment, in the circuit court of Wilkinson county, against John G. Reily and Henry Cage, administrators of Samuel Reily, deceased, for the sum of $829 60. The administrators prosecuted an appeal to the high court of errors and appeals; and at the January term, 1840, of that court, the judgment of the court below was affirmed, with damages and costs, &c.
    An execution issued on this judgment, thus affirmed ; and on the 1st August, 1843, was levied on a slave named Nero, as the property of Samuel Reily, which was claimed and replevied by Peter A. Presler, administrator of James Varnell, deceased, who gave bond to try the right of property.
    At the October term, 1843, of the court, Presler, administrator, &c., and claimant of the property levied upon, moved the court to quash the execution, for the following grounds, among others:
    1. Because the fi. fa. was satisfied as to Cornelius Yanhouten.
    2. Because the judgment on which said fi. fa. issued, had been taken up by one John M. Deloach, who, in right of his wife, one of the daughters and heirs of said Samuel lleily, deceased, had in his possession as such, a large amount of the property received by his wife by inheritance from her father’s estate, by distribution.
    3. Because said fi. fa. has been irregularly issued, &c. '
    The facts exhibited before the court below, on the motion to quash, were substantially as follows, viz.:
    The judgment against Samuel Reily’s administrators in favor of Yanhouten, was founded upon a debt due by the intestate in his lifetime. Before the affirmance of this judgment the property of the intestate was distributed to his heirs, ten in number. On the 1st June, 1841, Yanhouten, for a valuable consideration, transferred the judgment to Deloach, in these words: “ I, Cornelius Yanhouten, for, and in consideration of the sum of $1509 44, have, and do hereby assign, transfer, and set over unto John M. Deloach, all right, claim and interest whatever, that I have in and to a certain judgment at law, obtained in the circuit court of the county and state aforesaid, on 20th November, 1833, for the sum $827 60 '; $82 70, damages, &c. And I, Cornelius Yanhouten, plaintiff in said judgment, do fully authorize the said Deloach to control the said judgment in such manner as he may see fit. And I do hereby fully ratify and confirm unto the said John M. Deloach, his heirs and assigns, all my interest and claim in said judgment.”
    It further appeared, from the record, that John M. Deloach, in 1839, intermarried with one of the distributees of said Reily’s estate, and had, at the time of faking the assignment of said judgment, á number of negroes, the property of the said estate, in his possession, &c. The court below quashed the execution, and Deloach excepted, and prosecuted this writ of error.
    
      
      Simrall, for plaintiff in error.
    We presume there is no doubt that a plaintiff can, in good faith, and for a valuable consideration, assign his judgment so as to invest his assignee with all of the rights to the control and .fruits of the judgment.
    Did the transfer of the judgment, in this case, from Vanhouten to Deloach, who had intermarried with one of the distributees, ipso facto amount to a satisfaction of the judgment? We affirm that it did not, but that it conferred a right upon Deloach to sue the execution to.satisfaction against the property of the estate.
    The judgment in favor of Vanhouten gave a lien upon all the personal property of Samuel Reily’s estate, fjom the day of its rendition, in 1833. It cannot be questioned that that lien was in full force at the time Vanhouten transferred the judgment to Deloach.
    The distribution of the intestate’s property does not in anywise affect the lien. The judgment creditors can seize it in the hands of a distributee, and sell it to pay his judgment.
    The law first appropriates a decedent’s property to pay his debts, and the surplus to distributees. See Brooks v. Lewis, .1 How. 207.
    . According to the principle of this decision Vanhouten had, before the transfer, a clear right to have the fi. fa. levied upon any of the personal property of this estate, in the hands of any one of the distributees.
    So far, then, as judgment creditors are concerned the distribution was void; and by it their rights are not in anywise compromised. At law, between the immediate parties, a judgment can only be satisfied by actual payment of the money, or by an agreement between the parties, to receive something, or do something which is an equivalent, and in lieu of payment. The terms of transfer from Vanhouten to Deloach, clearly indicate that the judgment was not by the contract of transfer to be satisfied. But that Deloach was substituted as owner and proprietor of the judgment, and to the use of the. process of law to coerce the money.
    
      It is true Deloach acquired by intermarriage a portion of the estate of Samuel Reily, deceased, and at the date of the transfer had that property in possession.
    But does that, in law, work a satisfaction? If the property of one of these distributees is sold under this judgment,- he can, in chancery, call upon his co-distributees for contribution, and thus have the burden equally apportioned. But because his property is alone levied upon, it is no reason for the interference of the common law court to order the judgment to be satisfied. And a distributee whose property had gone to pay this debt, would have this right to contribution, whether his property had been taken before Vanhouten assigned, as well as afterwards; by the assignment they are put in no worse condition than they were before.
    The estate of Samuel Reily, deceased, is bound for the debt; his administrators are the defendants, and the only defendants. Now, authorities will be referred to by the counsel for defendant in error, to the effect, that if a note which has been in circulation, gets back into the hands of the maker, it is satisfied, and cannot be recirculated; and that if one defendant buys in the judgment he cannot run the execution for his benefit against a co-defendant; and that a sheriff cannot pay the plaintiff his debt, and keep open the judgment. But it is conceived that cases of this sort are not in point. This judgment is not against the distributees of Reily, in that character. In other words, Deloach is not a party defendant to the judgment; and there is no reason why a distributee may not take the assignment of a note, judgment, or mortgage, against the administrator, and enforce it. What circumstance disables him from being a creditor of the estate? and if creditor, surely he is put upon the same footing of judgment, mortgage, or general creditors, and can use for his benefit any liens which may attach to his debt. Deloach does not propose to make the full amount of this judgment out of the distributed property; he is willing to lose his proportion. The record, as I conceive, shows no ground of quashing the execution, and ordering it to be entered satisfied. If Presler, administrator, &c., loses by the sale of the negro levied upon, more than the rate of one distributive share, he might go into equity for contribution, or he might have his remedy at law; but in either event he has no right of action over, until he has overpaid. A. has a judgment against B. & C. B.’s property is levied upon; it is no ground for quashing the execution because O.’s property is not also levied upon; nor has B. any claims upon C. until he has paid the debt. So in this case. If Deloach is-not disabled from taking the assignment, he can levy upon any property liable to the satisfaction of the judgment; and the party whose property is levied upon cannot object that there is property in the hands of others equally liable. But after the paying the debt he has redress over. In 19 Johns. 395, a motion was made to satisfy or set aside the execution, upon a much stronger state of facts than those in this case; but the court refused, and sent the parties into chancery. 2 Dunlap’s Pr. 865.
    It is a sound rule that requires the most conclusive parol proof of payment, before a court will satisfy an execution; and it is submitted that such motion has not been in any case, except where the proof was clear of a payment in money.
    
      George Ii. Gordon, for defendant in error.
    The whole property owned by the decedent, Samuel Reily, in his lifetime, was ratably liable for the payment of this debt, and all of it had been distributed to his said heirs long before the rendition of said judgment in the high court of errors and appeals, as is fully admitted by the parties.
    Now, if one distributee or party having a portion of it in possession, has paid the judgment, can such distributee or party proceed by process emanating from a court of law, to enforce a repayment or refunding the amount so paid by him? We think not. We apprehend that the mere assignment of the judgment by the plaintiff therein, to a distributee who shall have paid the debt which he was equally liable and bound to pay with the other distributees, cannot alter the case.
    An assignment of the judgment to the person who may have paid it, and who was not a party to the record of such judgment, would be the natural course to be pursued to invest such party with the interest in it, and we do not deny but that the distributee who has paid the judgment has a claim for contribution, ratably, upon the other distributees who have received their distributive shares of the property of the decedent. But we insist that said distributee who has thus paid the judgment cannot proceed to enforce the collection of it by running an execution thereon against the property distributed to any one of his co-distributees, as was attempted in this case, but that he can only proceed by a suit in equity for contribution, making his co-distributees, or their assigns, heirs or legal representatives, parties to such suit. This is done to prevent circuity, or vexatious litigation. The principle is fully illustrated in the case of Avery v. Patten, 7 Johns. Ch. R. 211, where Chancellor Kent refused to direct the assignment of a judgment upon the payment of it, to enable the assignee to levy upon the property of a party liable to be subjected to contribute towards the payment of such judgment. The learned chancellor in that case proceeds and says : “Such a direction would only be creating another chancery suit, in favor of some of the claimants, upon whom the plaintiff might elect to levy the whole, or an undue proportion of the judgment. There might be a succession of suits and assignments, upon the ground upon which this assignment is asked for, &c.” Thus, then, we conceive it to be perfectly clear, that if a court of chancery would not direct the assignment of a judgment to a party who had paid it, but whose property was subject to be made liable to contribute towards the payment of such judgment, so as to enable him to levy an execution on the property of another person similarly situated in reference to said judgment, that a voluntary assignment made by the judgment creditor could not enable such assignee to run an execution on the judgment, and levy it upon the property of another similarly situated with himself. Indeed, we consider it to be a well-settled rule, that a party cannot sue or prosecute a proceeding at law, for any debt or demand, towards which he himself must ultimately contribute. Chitty on Bills, 70, 239; Meibom v. Codd et al. 7 Bara. & Cress. R. 419; 14 Eng. Com. Law R. 67; Teague v. Hubbard, 15 Ibid. 234; Bank of the United States v. Winston!s Executors, 2 Brock. R. 252. The counsel for the plaintiff in error has referred to the case of Brooks v. Lewis, 1 Howard’s R. 207, to show that an execution issuing on a judgment rendered against the administrator of an intestate may be levied on the personal property of the decedent in the hands of the distributees. This we do not deny in a case where the original plaintiff on the judgment is seeking to enforce payment by virtue thereof. But how different is the case now before the court. In the case referred to in 1 Howard, a creditor of the decedent had obtained a judgment against the administrators of the intestate, and had his execution thereon levied on property of such intestate, which had been set apart and distributed to his distributees. In the present case the judgment creditor has been paid his judgment by one of the distributees who at the time of the payment owned and had in his possession the very fund and means which was legally subject to pay the debt. We again, therefore, repeat, that in thus satisfying the debt to the judgment creditor, such distributee did nothing more than he was as much bound to do as any other of the parties similarly situated with respect to said judgment as himself. So we conceive the case referred to in 1 Howard to be totally inapplicable to the case under consideration, and that the court below was clearly right in directing the execution at law to be discharged, under the peculiar circumstances of the case, as presented before it.
   Mr. Justice Clayton

delivered the opinion of the court.

The question in this case grows out of the quashing of an execution in the court below. The execution issued upon an affirmance of a judgment in the high court, and before that affirmance, but after the judgment in the court below, the whole property of the decedent had been distributed among the distributees of the estate.

The execution had been transferred by assignment to one of the distributees, who had received his proportion of the estate in the process of distribution. Whether the transfer was made before or after the distribution took place, does not very certainly appear; but we infer it was afterwards. In this state of case this fact may not be very material.

The court below quashed the execution; and this order is attempted to be sustained here, first, on the ground that the purchase and assignment of the execution operated as a payment arid discharge, and next, that as the beneficial interest was in one of the distributees, he could not have it levied upon ^property which had been divided out.

The question of payment, in matters of this kind, is always one of intention. If it is the intention and understanding of the parties, that the transaction shall be an assignment, there is nothing in the law to prevent its having that effect. It will pass the beneficial interest, and give to the party the right to use the name of the judgment creditor to enforce the execution.

On the other ground, it is enough to say, that there may be equities among the several distributees of the estate, as to the proportions in which they shall contribute to the payment of this claim; but this point cannot now arise. The whole estate was bound by the judgment lien for its payment. Upon the motion to quash, the court could not legally undertake to adjust the equities of the parties.

We see nothing to justify the order of the court below; it is therefore reversed, and the cause remanded.  