58 Mich. 204 | Mich. | 1885
Complainant filed his bill to compel the set-off of so much as should be necessary of a judgment in his favor against John W. and Levi L. Phillips, against a judgment obtained against him by Levi L. Phillips, but assigned to defendant Warner.
The complainant’s judgment was obtained on a joint and several note made by John W. and Levi L. Phillips for
Levi L. Phillips sued Ledyard in August, 1880, formwork and labor in putting in. a wheat crop in 1874, and on the 27th day of January, 18S2, obtained judgment for $845.56 and costs, which he at once assigned to defendant Warner. On March 6, 1882, complainant filed this bill to enforce the set-off between the two judgments. The grounds relied on in the bill are that the joint judgment was for a private debt of Levi; that the transaction out of which Levi’s claim arose was in the nature of a mutual credit, — the employment being had on the understanding that the claims should be dependent on the same mutual dealings, the insolvency of Levi, and the assignment of the latter judgment to defendant Warner as a colorable attempt to evade the set-off.
The court below decreed a set-off as prayed, and included costs as well as damages.
We discover nothing to indicate that Levi’s work was dono with any reference to the claim set up against him by complainant. On the contrary, there is much to indicate that no counter-claim was then supposed to exist. There had been a foreclosure of a real estate mortgage on which a surplus of not far from $10,000 was decreed to belong to John W. Phillips as against Ledyard, by decision of this Court in April, 1875 (Ledyard v. Phillips 32 Mich. 13), — the sale having been made in 1874, previous to the services in question, and
On the 26th of November, 1881, for an actual and valuable consideration received from her in the price of land conveyed by her to him for $1800, Levi L. Phillips assigned to her all his claims against complainant then" in suit, and any judgment he might obtain thereon. At that time he had already obtained judgment in the old referred suit, which stood apparently good, and which was subsequently reversed on a contested question of law. At that time there was nothing which could stand in the way of his doing as he pleased with his other claim, which was put in judgment January 27, 1882. The assignment made after this judgment was no more than he was legally bound to complete, if necessary to fulfill the sale. There is no foundation in the record for any suspicion of its sufficiency. The transfer of the land is made out, and the only argument used against the assignment is based on domestic relations which are not shown to be wrong, and which could not in themselves deprive the assignee of the price due her for her lands. There is no force in the argument that the assignment could not discharge the vested equity to a set-off. No such equity was made out which would appear on the face of the judgments if made out at all. No presumption arises of any connection between a joint judgment and a sole judgment.
We think complainant made no case for relief. The decree must be reversed and bill dismissed with costs to appellants in both courts against complainant.