12 Ala. 697 | Ala. | 1848
The act of 1822, authorizes an executor or administrator, who has not power by the will to sell real estate for the purpose of paying debts, or to make more equal distribution among the heirs, devisees or legatees, to file a petition in the orphans’ court of the county in which letters of administration, or letters testamentary have been granted.,.
We come now to consider whether the bond declared on, can be transferred by indorsement, so as to pass to the assignee a legal title therein. The act of 1812, “ concerning the assignment of bonds, notes, &c„ and for other purposes,” enacts, that “ All bonds, obligations, bills single, promissory notes, and all other writings for the payment of money, or any other thing, may be assigned by indorsement, whether the same be made payable to the order or assigns of the ob-ligee or payee or not; and the assignee may sue in his.own name, and maintain any action which the obligee or payee might have maintained thereon previous to assignment,” &c. [Clay’s Dig. 381, <§> 6.] The act of 1828, “ defining the liability of indorsers, and for other purposes,” after declaring that the remedy on foreign and inland bills of exchange, and promissory notes, payable in bank, shall be governed by the rules of the law merchant, as to days of grace, &c., provides, that “ all other contracts in writing, for the payment of money or property, or performance of any duty of whatever nature, shall be assignable as heretofore, and the assignee may maintain such suit thereon, as the obligee or payee could have done, whether it be debt, covenant, or assumpsit. [Clay’s Dig. 383, $ 11, 12.]
It is well settled that bonds cannot be assigned at common law, so as to entitle the assignee to an action in his own name thereon. But courts of law will recognize the assignment of a bond, so as to refuse to give effect to a subsequent release of the,debt by the original obligee. The assignment, it has been held, amounts to a contract that the assignee shall receive the money to his own use, entitles him to sue in the assignor’s name, and is a sufficient consideration fora promise by the obligor to pay the assignee. [1 Bos. & P. Rep. 447; 2 Black. Rep. 1269; 1 Pick. Rep. 504; 1 Stew. & P. Rep. 60; 4 Rand. Rep. 266 ; 7 Conn. Rep. 399; 15 Mass. Rep. 485; 2 Greenl. Rep. 510; 2 Stew. Rep. 259; 2 Hals. Rep. 94; 3 G. & Johns. Rep. 214; 3 Hill’s Rep. 88; 5 Pet. Rep. 599.] The assignee of a bond takes it at his peril, and stands in the place of the obligee, so as to let in every defence which the obligor had against the obligee at the time of notice of
By a statute of Virginia, passed in 1748, it is enacted that “ an action of debt may be maintained upon a note or writing, by which the person signing the same shall oblige himself to pay a sum of money or quantity of tobacco to another.” In 1795, an act of the same State provided that “assignments of all bonds, bills and promissory notes, and other writings obligatory whatsoever, shall be valid ; and an assignee of any such may thereupon maintain any action in his own name, which the original obligee or payee might have brought, but shall allow all such discounts, not only against himself, but against the assignor before notice of the assignment was given to the defendant.” [1 Rev. Code of Va. 484, § 4, 5.] In Henderson, et al. v. Hepburn, et al. 2 Call’s Rep. 232, it was said that the former act did not embrace a bond with a collateral condition ; that whenever a bond is made with a smaller specific sum mentioned in the defeasance, or the bond is single, so that judgment may be given for that sum with interest, and for damages to be ascertained by a jury; there it is not necessary to assign particular breaches, and the bond will be considered one for the payment of money within the meaning of the statute. But if the principal sum for which the judgment is to be rendered is unascertained, and the intervention of a jury is necessary to adjust the damages; or if a special assignment of breaches is requisite to inform the defendant for what cause the action is brought, then the bond does not come within the act, so as to entitle the assignee to sue in his own name. [See also Lewis v. Harwood, 6 Cranch’s Rep. 82; Craig v. Craig, 1 Call’s Rep. 483.] In Meredith v. Duval, 1 Munf. Rep. 76, it was held that an assignment made after the statute of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was dated before the act.
Under the statute of Kentucky, which enacts that all bonds, bills and promissory notes, whether for money or property, shall be assignable, and the assignee may sue for the same, in the same manner the original obligee or payee could do, it has been decided that a bond with a condition for the
In Missouri there is a statute substantially the same, if not identical with that of Kentucky; under which it has been held that anote for a certain sum, payable in work, is not assignable, so as to authorize the assignee to sue in his own name. [Bothick’s Adm’r v. Purdy, 5 Miss. Rep. 83; Able & Isbell v. Shields, et al. 7 Id. 120; J. & P. Miller v. Newman & Paulsel, 8 Id. 355.]
We think it perfectly clear that the bond declared on, is ¡apt embraced by the act of 1812. The terms of that enact
It must be admitted, that our act of 1828, employs terms of •more comprehensive import than are used in that of 1812. ■While the latter is limited to bonds and all other writings for the payment of money, or any other thing, the former embraces all contracts in writing for the payment of money, or property, or performance of any duty of whatever nature. The direction that these shall be assignable as they previously were, instead of restricting the act to such writings as were
So the act of 1828 is much broader than the Kentucky statute, which only includes bonds, bills and promissory notes for money or property, and is as comprehensive as the Virginia act of 1795 ; which iu terms, and by construction, extends to all bonds, bills, and promissory notes, and other writings obligatory; and of course to bonds with reciprocal covenants, which stipulate to make titles to the land to the obligee. Upon the first presentation of this case, the question presented itself, whether the general terms “ performance of any duty of whatever nature,” should not be limited to contracts in writing, where the undertaking was absolute and unconditional, although the duty was to be performed in futuro. But further reflection and examination has satisfied us, that the assignee of a bond with reciprocal covenants may •maintain an action against the obligor in his own name, upon showing that the undertaking of the latter has become absolute by the performance of the conditions which are incumbent on the obligee. What has been already said in connection with the statutes of several of our sister States upon this subject, will suffice to show the reasoning by which this conclusion is attained, and render it unnecessary here to reiterate the argument. [See Burt v. Henry, 10 Ala. R. 874.]
In the transcript, we find a bond such as that declared on, set out in extenso, together with a receipt purporting to have been made by the defendant, on the 20th April, 1836, for two hundred dollars, paid by the intestate on account of his obligation to pay for the lands to which the defendant and intestate are entitled by pre-emption, in the name of the former, and William Reynolds. In this receipt it is stated that the defendant is to advance the remaining two hundred dollars, and the intestate is to repay him with interest in ninety days after the date of the above receipt. Immediately following the bond and receipt, there is a writing subscribed with the names of the commissioners appointed by the orphans’ court to sell these lands, and also with the name of the administrator in his representative character; which writing is as follows: “Mobile, November 7th, 1840. The land for which the foregoing bond was given, and also that to
Conceding that an administrator may transfer the choses in action of his intestate’s estate, in payment of his debts, or in the legitimate execution of his trust, and it may perhaps be questioned, whether, by joining the commissioners in the assignment of a bond, which we have seen they could not make, with the view o.f consummating a sale of land which the orphans’ court had not the power to order, the assignee became vested with a legal title to the bond. But it is doubtful whether these papers can be considered a part of the record, and we therefore decline furnishing a solution to the question ; the more especially as the cause may here be disposed of without a decision of the point. There is nothing in the transcript to indicate that the bond was ever assigned by the heirs of the obligee. We have not been able to find any decision in which the question arose, whether the heir or personal representative was entitled to a bond in favor of a deceased person, conditioned to make titles to land. The' cases most analagous are those upon covenants in respect to the realty, in which it is held, that if a breach occur in the lifetime of the obligee, the executor or administrator must sue, if after his death, the heir must sue. [See 2 Bibb Rep. 170, 180; 1 Lomax Ex. 286 to 293; 2 Id. 360, et seq. and citations in notes.]
It may be assumed as a postulate, that where the demand offered as a set off, is a debt of the assignor, and would not be admissible if the action were brought by him, it cannot be received where the suit is in the name of the assignee. This conclusion is supported by the act of 1812, and is the result of the general analogies of the law. [Clay’s Dig. 381, § 6.]
It is provided by our statute, that “ in all cases where there are or shall be mutual debts” subsisting between the plaintiff and defendant, or if either party sue or be sued, as-executor or administrator, where there are mutual debts subsisting between the testator or intestate, and either party, one debt may be set off against the other,” &c. [Clay’s Dig. 338, <§> 141.] This enactment, it has been held, is a substantia^
In Wilmot v. Hurd, 11 Wend. Rep. 584, it was decided that a set-off was not allowable where an action was brought for the breach of a warranty in the sale of a horse; that a set-off can only be allowed in actions founded upon demands,which could themselves be the subject of a set-off. [See Burgess v. Tucker, 5 Johns. Rep. 105.] So a set-off cannot be pleaded either in this country or in England for a moneyed demand, the amount of which is not referable to some-certain standard. [Roebuck v. Tennis, 5 Monr. Rep. 82; see also Sickles v. Fort, 15 Wend. Rep. 559; Driggs v.Rockwell, 11 Wend. Rep. 504; Littell v. Shockley, 4 J. J.Marsh. Rep. 245.]
The sum which is demandable for the broach of the covenant contained in the condition of the bond is uncertain, and is to be ascertained by extrinsic proof, and according to the authorities cited, the defendant’s judgnaent, though unobjectionable in itself as a set-off in a proper case, could not be allowed as such, in the cause before us, if the objection to its allowance had been regularly made in the court below. But it does not appear that the plea of set-off was demurred to, and we infer from what is said in the bill of exceptions, that it was submitted to the jury as the basis of one of the issues.Assuming this to be so, if the plea correctly described the' judgment as to its amount, time when rendered, &c. the plaintiffs could not object to its admission; for by consenting to go to the jury with an issue upon the plea, they admitted its sufficiency, and waived in advance an objection to the record, by which it could be sustained.
Without stopping to inquire whether the letter of the commissioner of the general land office, addressed to the intestate, was admissible, we think the construction placed upon it clearly indefensible. This letter is dated the 7th September, 1836, and informs the intestate that the writer had informed the land officers at St. Stephens to permit the entries of John M. Brown and William Reynolds, of the land claimed by them under the act of 1830 and by floats; and to refund to Messrs. Gager & Street the amount erroneously paid by them. For his reasons for that decision, he refers to his communication to the land officers of that date. Giving to this paper the most extensive meaning of which it is susceptible, and it does not appear that the confirmation of the claims referred to, was induced by any agency of the intestate, but merely that they had been confirmed. Nor does it establish the ful-filment by him of the stipulations of his contract, as evidenced by the condition of the bond. But conceding that the meaning of the letter was rightly interpreted, it may be asked} whether it is entitled =to any influence as an instrument of evidence ? It is unofficial, and as an admission, we think must be regarded as res inter alios, and is obnoxious' to the objection that the facts it narrates are not duly verified by the oath of the writer.
Other points are raised upon the record, and have been discussed at the bar; but the view we have taken of the questions considered, is sufficient to show that the law was incorrectly ruled by the circuit court, and may perhaps serve as a guide to the ultimate decision of the cause. The judgment is reversed, and the cause remanded.