63 Tenn. 137 | Tenn. | 1874
delivered the opinion of the Court.
Suit had been brought in 1860, in the name of Carney, who was indorsee of a note for $2,200, given by "Woods and Fields — Fields was only a surety on the note. Pleas were filed by defendants to the declaration, among others, one of non assignavit, stating that the note had not been regularly assigned to Carney — also a plea of usury. The case thus stood until after the war, when Fields asked leave of the
Carney answered in September, 1866, admits the suit had been brought in his name on information and belief, but disclaims all personal knowledge of the matter; says the note, in fact, belonged to the Bank of Tennessee, or to Mr. Avent, Trustee of said bank; had been transferred by direction of Avent to Carney, in order to bring suit on it in his name, for collection, but that he had nothing to do with this, and had never owned the note.
After proof had been taken, E. L. Jordan and
The proof shows the facts to be about these: Jo and William Spence were largely indebted to the Bank of Tennessee, in, perhaps, 1858, amounting to over one hundred thousand dollars. Carney and Fletcher were endorsers for the Spence’s on this indebtedness. Spence conveyed all his property by deed and bills of sale, consisting of land and slaves, to Carney and Fletcher, to indemnify them against loss. Spence, in his deposition, says, the property he had conveyed to Carney and Fletcher was conveyed to the bank, or rather to Avent, as trustee for the bank. The property was sold for cash notes, the bank having agreed to take the notes on good men. This note of the Woods’ and Fields seems to have been one given, as Spence says, for a portion of this property, and was, by Fletcher, to whom it had been endorsed, handed to Avent, . the attorney and trustee of the bank, to be collected and paid over to the bank, or held as collateral security for the payment of the Spence debts. Instead, however, of having it endorsed to the bank
The debt of Spence to the bank was, after the filing of the bill by Fields, and during the pendency of the suit, probably early in 1869, paid by Jordan and Elliot,- and they were to have the securities held by the /bank for its payment, and thus, they got title .to the note of $2,200.
These are the material facts of the case necessary to be considered, in order to settle the right of the parties.
There is a question made as to the regularity of the proceeding in allowing Elliott and Jordan to intervene, and make defence to the bill of Fields. We do not deem it important to settle this question at present. Their rights may be put aside entirely, in the decision of the case, as they purchased the note, or obtained their interest in it, during the pendency of Fields’ suit, with full . knowledge of complainants’ assumed equity, after the note was due, and so far as appears, without even delivery or endorsement of the note to them. In any aspect of the case, they but stand in the shoes of the bank or Spence, whichever was the owner of the note. The real question in the case is, can Fields maintain the equity of the bill as against the bank, and assert his set-off against the note as against that institution.
The principle is thus quoted with approval by Judge Wright, from Greenleaf on Ev., Vol. 1, §207, in the case of Meriwether v. Larmon, et als., 3 Sneed, 452: Admissions which have been acted on by others, are conclusive against the party making them, in all cases between him and the person whose conduct he has influenced. It is of no importance, whether they were made in express language to the person himself,
Applying these principles to This case, what is the result. The bank had this note transferred to Carney. It stood in his name, and he was held out to the world as owner. It had gone further, and asserted this fact, as against Fields, with still more emphasis, by suing on it in the name of Carney, the suit brought by her own attorney. The bank could not be permitted to deny the fact, that he was the owner of the note, and entitled to receive the money on it, to the injury of any third party who might be effected by such assertion. If Fields had paid Carney this note, it would have been a valid payment, no notice of the title of the bank being found on him. If judgment had been recovered by Carney, and Fields had, by agreement, satisfied the judgment in property, or in any way, to which Carney assented, it would have been effective as against the bank. If he had interposed any successful • defence to Carney’s recovery, we take it, the judgment must have been conclusive on the bank, as the bank had put Carney in her place, and would be bound by the result of his suit. If Fields, after purchase of this note, had, by agreement
"We think, to the extent of the $1,600, Fields would be injured, by the assertion of the title of defendants, and that Fields is entitled to his set-off; as to the $400, we infer from the proof, it was to be paid in the event Fields got credit for $2,000 against Carney. As we allow only $1,600, the liability actually incurred by the note given, we think he will not be held responsible for more by Robinson. To this extent, we think he is .entitled to his set-off; Hill v. Vant, Abbott’s N. Y. Digest, §§91, 145. In a word, he is entitled to be saved from all actual injury that would result to him by reason of the purchase of the note, which was purchased to be used as a set-off, and would not have been purchased, except for this right.
The Chancellor’s decree will be reversed, and a decree be entered here, 'm accordance with this opinion, costs be paid by Jordan and Elliott in this Court and the Court below, from the time they became parties. Carney will pay costs of Court below, up to that-time. Fields will pay costs at law, and a decree in favor of Carney for use of Elliott and Jordan for any balance after allowing set-off.