Baldwin v. Patton

| Pa. | Jul 15, 1840

The opinion of the court was delivered by

Sergeant, J.

The plaintiff is the assignor under a voluntary assignment, and brings this action of assumpsit for money had and received against the defendant, who was the attorney for the assignees, and also a purchaser from them, of all their interest in the county of Bradford. The plaintiff alleges that the defendant procured from the assignees a transfer of the property in Bradford county for the sum of 300 dollars, when in fact it was worth a great deal more money; and offered to prove that, since the purchase of the property, besides money received before, as attorney for the assignees, he had received other large sums out of the trust-fund, amounting to 1000 dollars, beyond what he paid the assignees.

The objection raised by the defendant to the maintenance of this action, seems to us to be insuperable, whatever might be our inclination to sanction the submission of the plaintiff’s allegations to a jury. In the first place, whatever moneys the defendant received before his purchase, seem to have passed into his hands as attorney for the assignees, and afterwards in his own right, and not for the use of the plaintiff, or on his account, in any instance. Then the remedy against the defendant, for any imposition on the assignees in his purchase, if such existed, or to call him to account for moneys obtained by these means, would seem to belong to the assignees, in whom the whole property has been vested in trust for the creditors in the first instance. The plaintiff has no right to meddle with the property, or to bring an action for the recovery of it, or its proceeds, into whose hands soever they may come. If the assignees refuse or neglect to perform their duty, the remedy of the plaintiff is against them, (o cite them to settle their accounts, when they would be made responsible for all that was lost by their neglect to discharge their duty, or for their participation in any waste of the property. And perhaps a case might occur in which a cestui que trust might use the names of the assignees in a proceeding against a third person.

But the plaintiff founds his right on the allegation that the assignment did not take effect, because the assignees never gave notice under the assignment, and that the giving this notice was a condition precedent to the vesting of the estate in the assignees. Whether notice was given by the assignees or not does not appear. In a suit against them, perhaps they would be bound to prove such a fact if requisite; because, the plaintiff could not prove a negative. But in a suit against a third person, this reason does not seem to apply; the defendant being no more conusant of the notice than the plaintiff. But we do not conceive this to be a condition precedent. It would leave the property in a strange state of uncertainty, if the title remained in abeyance till the assignees chose to give notice. They could not, by refusing to give notice, defeat the rights of the creditors in the fund. It seems to be a condition subsequent, or rather a duty imposed on the assignees, by the acceptance of the trust, and for the non-performance of which they would be responsible to the cestui que trust. Nor can we see any thing to justify the assertion, that the trust was abandoned. On the contrary, active proceedings seem to have been had under it from time to lime, as was shown by the plaintiff.

If it appeared, that the creditors were all paid, there would be more colour for the plaintiff’s right, by virtue of his resulting interest, to pursue the assets in the hands of those who were accountable for them. But no evidence whatever has been given to show this. There may yet be creditors unpaid: and if there are, the funds ought to be distributed amongst them, and the plaintiff has no claim till they are satisfied.

The result of the whole case seems to be, that it is the assignees only who can collect the funds of the assignor, and are authorized to sue for them; and to them the plaintiff must look for the recovery of any surplus due to him on account of what they did receive, or might or ought to have received under the assignment.

Judgment affirmed.