| Cal. | Jul 1, 1867
The one hundred and twenty-fourth section of the Practice Act provides, among other things, that “ all debts due such defendant, and all other property in this State of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.” Subdivision five of section one hundred and twenty-five provides that debits and credits shall be attached in a certain mode therein provided. Section two hundred and seventeen provides that “ all goods, chattels, moneys and other property, both real and personal, or any interest therein, of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action, shall he liable to execution. Shares and interests in any corporation or company, and debts and credits, and all other property, both real and personal, or any interest in either real or personal property, and all other property not capable of manual delivery, may be attached on execution, in like manner as upon writs of attachment.” Section two hundred and twenty, among other things, provides that the Sheriff shall execute an execution “ by collecting or selling the things in action.” Section two hundred and twenty-eight provides that the Sheriff shall execute and deliver to the purchaser of personal property
Under the foregoing provisions there can be no doubt but that the note in suit was liable to seizure and sale under execution against the holder and payee, David Thomas. It was a “credit” within the meaning of the statute. (Webster’s Dictionary, word “ credit,” 10.)
By the six hundred and forty-second section of the Code of Practice of Louisiana, the Sheriff, under an execution, is required “to seize the property, real and personal, rights and credits of the debtor, and to sell them to satisfy the judgment obtained against him.” Under this provision it has been held in that State that the right of a defendant in a promissory note may be sold under an execution (Brown v. Anderson, 4 Martin, N. S., 416), and that an actual seizure by the Sheriff is not required. (Wilson v. Munday, 5 Louisiana, 483.) In subsequent cases, however, this latter point seems to have been decided the other way. (Goubeau v. N. O. and N. R. R. Co., 6 Robinson, 345; Simpson v. Allain, 7 Robinson, 500; Fluoker v. Bullard, 2 La. An. 338; Offut v. Monquit, 2 La. An. 875; Taylor v. Stone, 2 La. An. 910; Stockton v. Stanbrough, 3 La. An. 390.)
In Adams v. Hackett, 7 Cal. 187" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/adams-v-hackett-5433325?utm_source=webapp" opinion_id="5433325">7 Cal. 187, this doctrine was announced as a judgment. In Johnson v. Reynolds, which was decided about the same time as Adams v. Hackett, but does not seem to have been reported, it was applied to promissory notes. Johnson sued Reynolds upon two promissory notes made by him in favor of Adams & Co., which he had purchased at a Sheriff’s sale under an execution against Adams & Co., by virtue of which the Sheriff had seized and taken the notes into his possession. These facts were set out at length in the complaint. The defendant demurred on the ground that the plaintiff did not become the lawful owner and holder of the notes by reason of the sale and delivery to him by the Sheriff. The Court below sustained
In the subsequent case of Crandall v. Blen, the policy of the statute was somewhat severely criticised, but the previous decisions were not disturbed. (13 Cal. 15" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/crandall-v-blen-5434066?utm_source=webapp" opinion_id="5434066">13 Cal. 15.) "Whether a note or other chose in action can be levied upon and sold without being taken into his possession by the officer, has not been decided so far as we are advised, nor is it necessary • that it should be decided in this case, for the note in suit, as the case shows, was taken into his possession by the officer and at the sale delivered to the purchaser. The question was involved to some extent in the case of Crandall v. Bien, but it was not decided. The Court there held that it could not be done unless the officer had a full and accurate description of it, and could give at the sale a full explanation of the conditions and facts determining its value, which was not true, as the Court held, of that case.
Of course by such a sale the purchaser takes the note upon the same terms upon which he would have taken it had it come into his hands in the ordinary course of business. In this case the note was overdue at the time of the sale, and the plaintiff' therefore bought it, subject to all existing defences. He stands in the shoes of Thomas, and cannot recover if Thomas could not, were he the plaintiff. What, then, would Thomas be entitled to recover had he brought this action? Or, in other words, what defence could Mitchell make after admitting, as he does, the execution and delivery of the note ?
If the transaction between him and Thomas, of which the note in suit was a part, was a fraudulent transaction as against the creditors of Thomas, he could neither aver nor prove the fraud in defence of the action. Mitchell could no more show the fraud in defence of an action upon the note
That such was the real character of the transaction does not admit of doubt. The Court below so finds, and the finding is fully sustained by the testimony. The attempt by the defendant in his answer to give the transaction a different color is shown by the testimony to be a complete failure. Neither party can he relieved from the position in which he has placed himself by the fraud which they successfully perpetrated. The law holds them to their bargain, and does not permit them to call themselves and each other names.
Order granting new" trial reversed.
Mr. Justice Rhodes expressed no opinion.