216 Ill. 559 | Ill. | 1905
delivered the opinion of the court:
In their opinion deciding this case, the Appellate Court, after making a statement of the facts as the same are get forth in the preface hereto, expressed the following views:
“It is claimed by counsel for plaintiff, Hinkley, that all this evidence is incompetent. In the view we take of the case we deem it unnecessary to take time or space to discuss or determine that question. There is no question of fraud in the case. It is true, the plaintiff avers that the said judgment mentioned in the assignment was a pretended judgment and void, but the proof fails to establish the averment. On the contrary, the plaintiff proved that the judgment was not pretended, but real, not void, but voidable, in the event Meneley should be let in to plead in the cause and make his defense, as was done. If the averment of the declaration that the judgment was void were proven, a very different case would be presented.
“The determination of the cause depends upon what covenants, implied or express, are contained in the assignment. Appellant contends that appellee by implication and by express terms warrants that the judgment thus assigned is a valid judgment, and that the amount named is due thereon. If this contention be right, appellant is entitled to recover unless the evidence above referred to makes a defense. We do not agree to appellant’s contention. We will assume that a valid judgment is one that cannot be successfully assailed by any proceeding at law or in equity. Counsel-cite authorities, which do sustain their position that the general language of the assignment, the mere words of description and transfer of the judgment, constitute an implied warranty that the judgment is valid. Arnold v. Hickman, 6 Mumford, (Va.) 15, Miller v. Duggan, 36 Iowa, 433, Emerson v. Knapp, 75 Mo. App. 92, and some other authorities support that proposition, but as we view the question, those authorities do not announce the correct rule, nor the rule as settled in this State. There is no implied warranty in the mere assignment of a judgment that it is impregnable. The implied warranty is that it is a genuine judgment, that in due form of law a judgment was entered, that the court had jurisdiction to enter it, and that it has not been paid, released or otherwise nullified.
“A judgment is not a negotiable instrument or writing; it is a mere chose in action; the doctrine of caveat emptor applies to the purchaser thereof. If such purchaser desires warranty beyond what is so implied, as above stated, he must see to it that he gets it in express terms, This is not an open question in this State. While the precise question has not been decided in terms, it has been substantially.
“In First Nat. Bank v. Drew, 191 Ill. 186, the subject of implied warranty on sale of mere dioses in action is discussed at length, some former decisions of the court upon the same subject are cited, and the doctrine, as hereinabove stated, is again announced and approved. We deem further discussion of that question unnecessary.
“There being then no implied covenant in the assignment that the judgment is proof against all attack, it remains to be considered whether there be any such express covenant. It is urged by counsel for appellant that the words: ‘The said party of the first part does covenant that there is now due on the said judgment the sum of $2633.00’ are a covenant that the judgment is a valid judgment. We do not think that a fair construction of the above quoted words warrants the conclusion drawn by counsel. The natural and reasonable meaning, which would be given to those words by either lawyers or laymen, is, that the assignor had received no payment thereon. It is as if it read: ‘does covenant that nothing has been paid on said judgment, there is now due thereon the sum of $2633.00.’ When the words in the im-' mediate connection are read also, the meaning, if obscure before, becomes perfectly clear. The language is: ‘And the said party of the first part does covenant that there is now due on the said judgment the sum of $2633.00, and that it will not collect or receive the same or any part thereof, nor release or discharge the said judgment.’ That is, the assignor covenants that nothing has been or will be paid to it oil the judgment. If it had been contemplated by the parties to make assurance that the judgment was a valid judgment, not successfully assailable by any future proceeding at law or in equity, other language than was used would naturally have been used. Naturally it would have been written ‘that the said judgment is a valid judgment,’ or some other words of like import.
“When the question is put concerning a note, bond, judgment or other like writing, how much is due 011 it? the answer expected is not that it is a valid instrument, but that so much remains unpaid. At the most, it is only by argument and inference, by implication, that it can be said that the language used conveys the idea of validity. The reasoning is: the sum of $100.00 is due on this judgment, therefore the judgment is a valid judgment, for, unless it were a valid judgment, there could not be anything due on it. Counsel for appellant cite Hurd v. Slaten, 43 Ill. 348. Hurd was administrator of the estate of one Darr. Darr recovered a judgment against one Miller, and assigned it to Slaten. The assignment contained the following: ‘covenanting that the sum of $478.00 including the interest and cost is due thereon.’ Before the assignment was made an execution had been issued on the judgment and Darr’s attorney had receipted upon it full payment to him. The opinion of the court reads: ‘It is clear that Darr by this writing covenanted that this judgment against Miller, in his favor, was unsatisfied, and that it amounted to $478.00 for which the Slatens paid value.’ The language of that covenant is precisely the same in substance as in the covenant under consideration. It is said by the court to be clear that the meaning of the words is that the judgment is ‘unsatisfied.’ So here, the clear meaning of the covenant is that the judgment against Meneley is wholly unsatisfied. Bennett v. Duncan, 61 N. Y. Ct. of App. 222, and Jansen v. Ball, 6 Cow. 628, are cited by appellant.
“In the Bennett case the covenant in the assignment was that the sum of $1034.46 was due on the judgment. The fact was that .the only solvent defendant to the judgment had been released before the assignment was made. There was in legal effect no such judgment in existence as described in the assignment. In the Jansen case there was ‘warrant that all the above sums remain due and unpaid.’ In fact no such judgment had ever been recovered. There was no judgment in existence, the assignor was liable on the implied covenant of the assignment that a genuine judgment existed.
“In the case at bar no such conditions exist as in the two cases last referred to. Here, there was a genuine judgment in existence, and no release thereof, and no payments made thereon. If the purchaser of a genuine unsatisfied judgment desires assurance that it is valid, proof against assault, he must take proper covenant therefor. As is said in Otis v. Cullum, 92 U. S. 447: ‘If the buyer desires special protection he must take a guaranty. He can dictate its terms and refuse to buy unless it is given. If not taken he cannot occupy the vantage ground upon which it would have placed him.’
“We find in this record no breach of either implied or express covenant, and the judgment will be affirmed.”
We concur in the views above expressed by the Appellate Court, and adopt the same as the opinion of this court. Accordingly, the judgment of the Appellate Court affirming the judgment of the circuit court is affirmed.
Judgment affirmed.
