80 Va. 512 | Va. | 1885
delivered the opinion of the court.
In 1872 a lien creditor’s suit, under the style of Warren v. Lersnear, was instituted to enforce the lien upon the real estate held by Gustavus Lersner in the counties of Loudoun and Fau-quier. An aeecount was ordered in June 1878. The commissioner returned an account of liens, which was confirmed by the circuit court of Loudoun, in October 1874: and the Loudoun lands were ordered, by the court, to be sold. Part of these lands had been sold, when, in the summer of 1876, the defendant, Gustavus Lersner, died; and the cause was revived against his executor and devisees. In October, 1876, a decree was entered for the commissioner to review and revise his account of liens, and to take further account thereof, as well as of all other debts outstanding against the late Gustavus Lersner.
The commissioner returned his report of debts with their priorities, which was confirmed by the court; and, among them, a debt due to Morris Lersner of $8900, with interest from May 2d, 1876, and secured by a deed of trust, recorded in Fauquier county, upon the lands of Gustavus Lersner in that county. The lands were all sold, and the liens transferred to the fund in the cause.
Aaron Daily became an assignee for value, of this lien reported in favor of Morris Lersner to the extent of about $1500, by virtue of various assignments, made from time to time, by
To this petition Morris Lersner was not made a party, although his counsel suggested to the court that, he ought to be made a party defendant to the petition; and the court, upon an inquiry and report from a commissioner as to what part of the interest of Morris Lersner in the cause was covered by these assignments, by its decree of October term, 1880, ordered its commissioner of sale to collect the fund belonging to the cause, and, after payment of costs, to pay the residue to the parties to whom the commissioner had reported it to be due— among others, to the executor of Aaron Daily, as assignee of Morris Lersner, the sum of $1387.78.
In September, 1881, before the aforesaid order in favor of Aaron Daily’s executor had been executed, Morris Lersner and Ignatius Lersner filed their joint petition, asking that the commissioner of sale should be enjoined from paying to Daily’s executor the aforesaid sum decreed to him, on the ground that the entire dividend on Morris Lersner’s debt was due to Ignatius Lersner, by virtue of an assignment to him, made on the 15th day of March, 1877, eighteen days prior to the assignment to Aaron Daily; and praying that the aforesaid order of October, 1880, in the pending case of Warren v. Lersner, in favor of said Aaron Daily’s executor, might be reheard, reviewed and corrected; and for general relief. An injunction was awarded by the circuit judge, according to the prayer of the petition. To this petition the defendant, Aaron Daily’s executor, demurred and answered, and contended that Aaron Daily was an assignee for value, and without notice of the previous
The court overruled the demurrer to the petition, and overruled the exceptions to the commissioner’s report, and to the testimony of Morris Lersner and others; and, by its decree of 23d of January, 1883, confirmed the said report, and ordered the money to be paid to Ignatius Lersner. It also sustained exceptions to certain depositions taken in behalf of appellant; and overruled a motion of appellant for further time to show actual fraud, after the decision of the case by the decree complained of.
This is a competition of assignments, and the only question before this court is the validity and bona fides of the assignment of March 15th, 1877, by Morris Lersner to Ignatius Lersner.
"We are of opinion that the circuit court did not err in allowing the petition of Morris Lersner and Ignatius Lersner to be filed in the cause, September 10th, 1881, and in overruling the demurrer. No final decree was made iu the cause until January, 1883, and in September, 1881, the cause was still pending. By the decrees entered, the rights and questions of subrogation were reserved to any person, and the commissioners of sale were directed to collect and report their proceedings to the court, from time to .time, and, if necessary, to bring suit against the purchasers. And in October, 1881, the .legal title to the lancl sold was brought before the court, and a deed to the purchaser was decreed to be made. Sexton’s ex’ors v. Patterson, &c., Va.
The court did not err in overruling the exceptions to the deposition of Monis Lersner and of Ignatius Lersner. The questions raised and put in issue by the petition and pleadings were never before the court, and presented original or new matter of controversy. The deposition of Morris Lersner was allowed to stand only in regard to the consideration and execution of tire $1900 assignment; and all facts in relation to the $600 item (which is not before the court, and is immaterial to the main and controlling question) were suppressed. Ignatius Lersner was clearly a proper and competent witness as to the consideration and execution of the said assignment and want of notice of Daily’s petition, and of the proceedings by the commissioner under the decree of April, 1880.
The court did not err in sustaining exceptions to appellant’s depositions. They were allowed to be read for the purpose of impeaching the credit of Morris Lersner; but they fail to do this. The deposition of Henry Harrison relates entirely to the $600 item, and refers to .things which occurred after March 15th, 1877, out of Ignatius Lersner’s presence, and is wholly irrelevant to the controversy in regard to the $1900 assignment. John Carr’s letter to Harrison & Powell, attorneys, in 1881, is subject to the same objection. C. K. Harrison’s affidavit embraces only sundry letters written to him by Morris Lersner,
According to the rule laid down in Greenleaf’s Evidence, 12 edition, sections 461-466, the evidence of L. H. Powell and of O. K. Harrison was inadmissible; and that of John Carr’s letter and Henry Harrison’s deposition are irrelevant, and none of them evidence against Ignatius Lersner. The answer of Daily’s executor upon its face, discloses that he, of his own knowledge, knows nothing of the case stated in Lersner’s petition, and therefore has not the weight of a responsive answer.
On the 15th day of March, 1877, Morris Lersner, in the city of New York, did assign, transfer and deliver to Ignatius Lers-ner, of Paris, France, the bond of Gustavus Lersner, payable to him, Morris Lersner, dated May 2d, 1876, at twelve months after date, secured by a deed of trust on. his Fauquier lands. The said assignment was in writing, under seal, duly acknowledged before a notary public on the same day. Morris Lersner was about to return to Virginia, and Ignatius Lersner to Paris. The execution of said assignment and the delivery of the bond itself to the assignee, Ignatius Lersner, are proven by the notary public, by Ignatius Lersner, by Morris Lersner and by Emil Lers-
As to the consideration for the said assignment to secure the |>ayment of the said $1900, with interest, to Ignatius Lersner, and its bona fides, there can be no doubt, or room for question. In 1874, Morris Lersner, who was then indebted to Ignatius Lersner for advances made, as per account entered and stated in memorandum books shown in the record, closed those accounts by the execution and delivery of his due-bill March 2d, 1874, for the ascertained and stated balance of $1831.68. He was not then indebted to anyone else, so far as the record shows; and, assuredly, not indebted to, or having any relation of business with, Aaron Daily, whose specific claim, asserted in this controversy, took its inception April 3d, 1877, the date of his assignment.
In March, 1877, Ignatius Lersner was about to go to Paris, France, and he and Morris Lersner met in New York, and made a settlement of their business affairs with themselves, the old due-bill being surrendered, and Morris executing and delivering therefor the formal written assignment of March 15th, 1877, of the $3900 bond due to Monis by the estate of G-us-tavus Lersner, to secure to him the payment of $1900, with interest at 7 per cent., from January 1st, 1874, upon the terms and covenants contained in the said written assignment to reassign and surrender back to Monis Lersner the said bond or
This assignment of March 15th, 1877, by Morris Lersner to Ignatius Lersner, was neither fraudulent in fact nor in law. The debt secured to Daily by the assignment made to him April 3d, 1877, was not in existence on March 15th, 1877; and the record shows, beyond debate, that on April 3d, 1877, Powell Harrison, tlm attorney for Daily, who wrote the assignment in his favor, believed, as the approved reports of the master commissioner in the cause showed, and as Morris Lersner believed, and had no reason to distrust, that the proved and reported debt due to Morris Lersner in the cause, was good for its full face amount, and would be paid in full out of the proceeds of sale of the .Fauquier lands, upon which it was secured by deed of trust. It was not necessary for Ignatius Lersner to aver in his petition, that Daily, on April 3d, 1877, when he took his assignment, had notice or knew of the assignment to him of a part of the fund due, in the cause, to Morris Lersner. lie could stand, and does now stand, upon the rock of his priority of assignment, and the delivery to him, and his possession of, the bond itself for $3900. Daily’s executor, in his answer avers, affirmatively, that Aaron Daily, his testator, took his assignment of April 3d, 1877, without notice of the prior assigment; and this is a part of appellant’s case, not appellee’s; yet, the record does shoAv, by the evidence of A. J. Lersner, that Morris Lersner, on April 3d, 1877, in the presence of Aaron Daily, stated to Powell Harrison, attorney for Daily, that he had already assigned $1900 of the claim to Ignatius Lersner, and that only $2000 of the debt was left. The bond itself, evidencing the debt, was not in the possession of Morris Lersner; and it is not to be presumed or believed that Powell Harrison, acting as adviser and attorney for Aaron Daily, and writing the assignment in his favor, would have failed to ask for the bond, and to require it to be filed and delivered along with assignment to Daily, unless he and Daily both knew of the assign
The charges of laches, secret trust, and fraud, are not only not proved, but are disproved by the record. . Ignatius Lersner was absent, in Paris, and when at home, in New York; and this claim, partly assigned to him, could only be paid out of the last payment for the land sold, which was not due until October, 1881. The rule caveat envptor applies to assignee of dioses in action, and especially when, as in this case, the assignor has not the chose in possession to deliver to the assignee. Brown v. Taylor’s committee, 32 Gratt. 138. In this case there was no possession of the bond assigned and delivered by Morris Lers-ner to Ignatius Lersner, March 15th, 1877, nor of the lien, for that was recorded in Fauquier. Morris Lersner regarded it as a good asset, and so did Powell Harrison; and Ignatius Lers-ner was in no wise privy to any of the assignments made to Daily; and he, Daily, took them with actual as well as presumptive notice of the prior assignment and delivery of the bond to Ignatius Lersner to secure his*claim for $1900. The failure to produce the bond assigned was notice, presumptive, to Aaron Daily and to P. Harrison, his attorney, of its being out of Morris Lersner’s possession, and put them upon inquiry. 2 Minor Inst. 889. “A subsequent purchaser is charged constructively with notice of all facts and instruments, to the knowledge of which he would have been led by an inquiry into the incum-brance, or other circumstance affecting the property, of which he had actual notice.” Daily had actual knowledge that there was a bond in this case, and so had Powell Harrison, for the very assignment which they wrote and took April 3d, 1877, so states. By no word, or act, or conduct, of Ignatius Lersner,
We do not think the court erred in overruling the motion for further time to show actual fraud, made after the decision of the case. It had been pending since September, 1881, and all the proofs, on part of appellee, had been filed as early as April, 1882, nine months before the court decided the cause. Appellant had charged fraud, and want of notice of previous assignment; and, as his own ease, he was bound to prove it. He had ample time, and submitted the case to the judgment of the court, as a whole; and the statement upon which he based his motion for further time, of, in fact, a new trial, made no pre-tence of new matter, and it was not sworn to' by anyone.
There was and is no law in Virginia, requiring the assignment of a chose in action to be recorded, and if recorded it would not affect any one with notice. 2 P. & H. 178; Gregg v. Sloan, 76 Va. (1 Hansbrough) 497; Kirkland, Chase & Co., v. Bruce, 31 Gratt. 126; Bickle v. Chrisman, &c., 76 Va. (1 Hansbrough) 678. Assignee of chose in action is not required to do more than take possession of the thing or evidence of debt assigned. After careful and critical comparison of the facts of this ease with the facts of the cases cited by appellant, Davis v. Turner, 4 Gratt.; Curd v. Miller, 7 Gratt. 185; and Twine’s case, we find no analogy or proper application to the case under review. Some of the cases cited were controversies concerning title to real property; and, in all of them, the assignor, or vendor, retained possession of the thing sold or assigned.
We concur in the judgment of the circuit court of Loudoun county, and the decree complained of must be affirmed.
Decree aefirMed.