Logan v. Sumter

28 Ga. 242 | Ga. | 1859

By the Court.

McDonald, J.,

delivering the opinion.

The action of the court below was brought to recover money which, it was alleged, was paid without consideration.- The plaintiff in error became possessed of an execution, issued on a judgment obtained in Habersham superior court, in favor of B. F. Patton against the defendant in error, on the indorsement of a note of one thousand dollars, made by T. W. A. Sumter, and indorsed by several persons, and among them Jacob Stroup, who was the last indorser. The maker and endorsers were all sued in seperate actions by Patton, the holder; and Jacob Stroup, the last indorser, paid the entire debt, all which appears in an exemplification of the case and an execution against Stroup. B. F. Patton died, and his administrators finding amongst his papers the execution, open and unsatisfied, against Sumter the defendant in error, sold it as an insolvent or doubtful debt.- Through that sale the plaintiff in error became the holder of it, and under it received the money sought to be recovered back. Whether he is the holder under an administrator’s sale or by transfer of the plaintiff himself, he is the assignee of it, and is authorized to collect it in as full apd ample a man-net- as the plaintiff could have done, if there had been no transfer or assignment of it. (Cobb’s new Dig., 699.) He stands in his place and can have no better or higher claim. It is always legitimate, then, in controversies arising between the assignee of an execution and the defendant, to enquire into the right of the plaintiff against the defendant; and whether, if it had not been transferred, the plaintiff could have collected it.

1. On the trial of the cause in the court below, the defendant in error, who was plaintiff in that court, offered in evidence the copy of records, from the superior court of Habersham county, of .the judgments in favor of B. F. Pat-toiFagainst Jacob Stroup, and against the defendant in error, and the executions and entries thereon, issued on said judgments, to the admission of which the plaintiff in error, by his counsel, objected, on the ground that they were “ irrelevant and improper,” not being between the parties litigant in the cause. The execution and the exemplification of the judgment on which it was founded, against the -defendant in error, was admissible, for it was 'the subject of the contract on which the money was paid by the -defendant to the plaintiff in error. The other record and execution were admissible as shewing the rights of the plaintiff in fi. fa. against the defendant in error at the time of the transaction between the plaintiff and defendant in error. Again, the plaintiff’ in error claimed through B. F. Patton, the plaintiff’ in Ji. fa., and stood precisely in his place, and “ the declarations of an intestate are admissible against his administrator, or any other claiming in his right.” (1 Greenleaf Ev. §189.) This does not differ from the ordinary case of a claim, when the claimant is allowed to prove the payment of an assigned execution, while it was in the hands of the original plaintiff, by any evidence which would be admissible, if that plaintiff had not transferred it..

2. After the evidence was closed, the plaintiff in error moved in the court below for a non-suit, on the ground that the evidence of the plaintiff did not make out a case of legal liability by the defendant to the plaintiff. The court overruled the motion and this decision is assigned as error. It was contended before us, that in the original transaction between the plaintiff and defendant in error, there was a sufficient consideration to support the contract, and that, if there was, the plaintiff in the court below ought not to recover. This argument seems to have been sustained on the assumption, that the main ground on which the plaintiff relied for a recovery was, that the execution was, at the time, dormant and could not be enforced against him. If that had been the only ground of objection to the execution, the consideration, unquestionably, would have been sufficient, for it might have been revived against him. But the plaintiff in error had no title. He derived-the execution from a party who had been paid, and who, had he been the plaintiff in a proceeding to revive the judgment, must have been defeated. The plaintiff' in error could occupy no better position; and if, in a proceeding of that sort, he must' have been defeated, either because he had no title, or because the execution had been paid, the defendant in error was not liable to him in any respect, and all that he paid for a discharge from the execution, believing that he was liable on it, was a payment without consideration, and he is intitled to recover it back.

Judgment affirmed.