74 Tenn. 689 | Tenn. | 1881
delivered the opinion of the court.
In the year 1866, the firm of Stedman Brothers & Co., then engaged in keeping the Overton Hotel in Memphis, bought, through B. B. Waddell, one of its members, in the city of New York, a large amount of furniture and fixtures for the Jiotel, partly from Henry Bruner, partly from A. T. Stewart & Co., and partly from E. V. Haughwont & Co. As a part of the contract made with each of these vendors, it was agreed that the purchasers would give a chattel mortgage on the furniture bought to secure the purchase price. Before the furniture was delivered, one of the Stedman brothers died, and B. B. Waddell, W. H. Stedman and C. B. Galloway, under'the style of Wad-dell, Stedman & Galloway, became the successors of the previous firm, and agreed to receive and pay for the furniture on the same terms. They accordingly ;gave their notes for the price, and executed the chattel mortgages to the several vendors as stipulated by the contract. The notes given to Henry Bruner bore date November 26, 1866, were signed in the firm name,. and made payable to B. B. Waddell and Samuel Stedman, at intervals of a month, beginning at five months and ending with twenty-four months after •date, each for $1,127.57, and aggregating $22,551.40. The notes were delivered to Bruner with the endorsement of Waddell alone, Samuel Stedman, who was expected to endorse them for the accommodation of the makers, having declined to do so. The . mortgage was executed by B. B. Waddell, C. B. Galloway and
Subsequently, and before the expiration of the year 1867, Waddell and Boyd retired from the firm, selling out to S. B. Robbins & Co., the new firm agreeing to assume the liabilities of its predecessor. There is a conflict of testimony at this point. Waddell and Boyd, it seems, thought that they were selling to S. B. Robbins and H. B. Plant, who were to continue
On the 1st of April, 1868, Robbins and Plant conveyed all of the furniture, fixtures, &c., of the Over-ton Plotel to W. B. Dinsmore and T. B. Blackston in mortgage to secure an indebtedness of $50,000, recited to be for borrowed money. In the spring of 1869, the original mortgagees, Bruner, Stewart & Co. .and Haughwont & Co., demanded possession of the chattels severally mortgaged to them, and the possession was surrendered to them by Robbins and Plant. It was desirable to retain the property for the hotel, and negotiations were entered into which resulted in the selection, chiefly by the mortgagees through their counsel, of suitable persons to value the chattels, with an understanding that the mortgagees would sell at the valuation, thus releasing the property, and leaving the mortgagees to look to the persons liable on the notes for the residue of the amount due them. The valuation was made, and Bruner and Stewart & Co. accepted the valuation as coi’rect, the price fixed upon the articles in Bruner's mortgage being $10,600. Each of the parties received from Robbins and Plant the value thus ascertained in satisfaction of the mortgage.
The record does not show the situation of the pro-r ceedings under the writ of error coram nobis in the laiv court at the time the parties agreed to a transfer of the litigation to the chancery court. It merely contains the petitions for Avrits of error with affidavits accompanying each petition, and those affidavits, Avith the cross-examination of some of the affiants, and one or two depositions in addition. The consent order,removing the litigation to the chancery court, seems to ’have been made on the 7th of June, 1870. Perhaps it is useless to find 'fault with this experiment
Both parties have argued this point of the case as if they meant by the “merits of the writ,” the sufficiency of the causes assigned for not having made defense to the suits at law, their sufficiency to be tested not merely by the statements of the petition but by the evidence introduced. The causes assigned in the petition are substantially — 1. That public notice ■ was given that no judgment by default should be taken at the August term. 2. That it was publicly announced that no other business except such as parties might be entitled to on the first day of the term as
The writ of error coram nobis lies, for the correction of a material error of fact, where the applicant has had no notice of the proceedings,' or was prevented from making defense by surprise, accident, mistake or fraud, without fault on his part: Code, secs. 3110, 3116. The petitioners Mad due notice of the suit and employed counsel. There was no fraud upon the part of the plaintiff or his counsel. Was there either surprise, accident or mistake “without fault” on the part of the petitioners? The petitioners’ counsel called for the papers on the second day of the term, and found no declaration, but the plaintiff had until the next day to file his doedaration. It is said there was an agreement between the counsel of petitioners and the counsel of the creditors that neither would take a judgment against the other without notice. But it is not stated that the counsel of the creditors knew of the retainer of the counsel of the petitioners, and the latter failed to mark their name to the docke'. And it-is doubtful whether an “understanding” between individual members of the bar, as a matter of courtesy, will'avail in the absence of a rule of practice on the subject: Gallena v. Sudheimer, 9 Heisk., 189. A pub-
We are the better satisfied with this conclusion because the record fails to establish any • error of fact which would justify a reversal of the judgment. An error of law cannot be reached in this mode: Patterson v. Arnold, 4 Cold., 364. Most of the errors relied upon, not in the petition itself for that contains no assignment of errors, but in the affidavit of Waddell, which is made an exhibit to the petition, are of the latter character. Whether the title to the notes sued on passed to Bruner by the endorsement of Waddell alone, and to Dinsmore by delivery, and' whether the undertaking of Waddell and Boyd, by their endorsement of the 29th of May, 1867, gave to Bruner, or Dinsmore as his assignee, a right of action against 'them, were questions of law arising upon the record then before the court: Upton v. Philips, 11 Heis., 215. The obligation created by the written assumption, being based upon the contract and being the consideration for the interest acquired, was clearly not a nudum pactum, because executed after the trade had been made, and, as a majority of this court has held, enured to the benefit of the mortgagee without an extinguishment of the original debt: Moore v. Stovall, 2 Lea, 543. The notes sued on were certainly not extinguished by the transaction in the spring of 1869, by which Bruner sold the mortgaged chattels at -valuation. By the mortgage, he was authorized to take possession and dispose of them for the best price
The remaining question arises upon the petition of A. M. Boyd, and involves the- priority of right between him and the complainant to a decree rendered by the chancery court, on January 18, 1867, in favor of Coleman Boyd against one "Valentine Werner for $4,023.04, with interest from January 7, 1867, on which, however, there had been paid, on February 10, 1867, $1,132.09. Several creditors of Valentine Werner, and among others, Coleman Boyd, had filed separate attachment bills against him, and had attached-valuable realty. The suits were consolidated, and the land sold,' on August 14, 1866, under orders of the-court. One J. S. Stanton had become the purchaser, at the price of $12,000, for which he executed his two notes for $6,000 each, payable to the clerk and-master at six and twelve months. The decree of the 18th of January, 1867, ascertained the debts of the several creditors, and directed them to be paid in the
The complainant’s right to this fund dates from the filing of his bill, to which the clerk and master of the court, but not Valentine Werner, is made a party. A. M. Boyd claims the fund under an assignment to him, in writing, by Coleman Boyd, of the decree on October 1, 1868, which was filed in the cause on the 5th of the same month, and a written notice of the assignment mailed to Valentine Werner at Canton, Mississippi, his place of residence, about the same time.
The assignment of a judgment or decree, as of any other chose in action, carries to the assignee an equitable right to the fund which is good between the parties, and will authorize the assignee to receive the money from the debtor, or enforce collection in the name of the assignor. If the debtor pay the debt
In the case before us, A. M. Boyd has a valid assignment from Coleman Boyd of his decree against Valentine Werner made on October 1, 1868. The complainant filed his bill to reach the fund represented by the decree on the 3'lst of August, 1869, but did not make Valentine Werner a party defendant, nor, so far as appears, has he ever notified him in any way of his proceedings. The petitioner, A. M. Boyd, is clearly first in point of time, which gives him the superior equity, and must prevail unless there is something else in the case to change the rule.
The complainant insists that Coleman Boyd, by virtue of his decree of the 18th of January, 1867, became entitled to the fund represented by the Stanton debt, Werner being thereby released and his in
The decree below will be affirmed as to the complainant with costs, but modified so as to declare that A. M. Boyd is entitled to the proceeds of the decree ■of the 18th of January, 1867.