Dawson v. Coles

16 Johns. 51 | N.Y. Sup. Ct. | 1819

Spencer, J. delivered the opinion of the Court.

Two points were made : 1. That the assignment of the sealed obligation to Brady, not being under seal, no interest passed; 2. That the judgment and proceeding in the Justice’s Court, was a bar to this suit.

It has even been doubted, whether a freehold interest in land might not be conveyed by writing without seal. This Court has decided, that a lease for years may be assigned without seal; and, in Runyan v. Mersereau, (11 Johns. Rep. 538.) we held, that a mortgage might be assigned by parol, accompanied with a delivery. There is no foundation for this objection.

This Court has repeatedly declared- its determination to notice and protect the assignee of a chose in action, against the frauds of the assignor and the obligor, of promiser. Here it is evident, from the facts set out in the replication, that the sealed obligation had been assigned to Brady ; that he had given notice to the defendant long before the suit in the Justice’s Court, and that suit was a mere contrivance. between these parties to cheat B. out of his debt 5.for he appeared in that Court, having the sealed note in his possession, and stated, that he owned the debt, and that the suit there was not prosecuted by his orders, or for his benefit. We are authorized to infer a contrivance between these parties to defraud Brady ; for, otherwise, the suit could not have proceeded, as the plaintiff was not possessed of the covenant on which he sued. It was the duty of the defendant to have pleaded the assignment to Brady, and that the suit was not prosecuted by him, or for his benefit, the defendant having had notice of the assignment. To uphold this proceeding would be sanctioning a fraud upon the assignee.

Judgment for the plaintiff.