141 Mo. 113 | Mo. | 1897
— This is an appeal from a judgment of the St. Louis circuit court in favor of the plaintiff for the sum of $3,900. The following is the finding of the facts and the conclusions of law made by the trial court in writing at the request of the defendant, under the provisions of section 2135, Revised Statutes 1889:
“rinding or racts.
“(1) That one William B. Ferguson, in the year 1873, brought suit on a note of $542.95 against one Patrick Macklin etal. (2d) That said Patrick Macklin, at the time of the institution of said suit, was possessed of certain real estate described in the petition, and that while said suit was pending in court, the said Patrick Macklin conveyed said real estate to one Francis L. Haydel, as trustee, for the sole and separate use of his wife, Ann Macklin. (3d) That on the ninth day of December, 1873, the said Ferguson recovered judgment on said note against the said Macklin et al. for the sum of $626, and execution was issued thereon. (4th) That under said execution the sheriff of the city levied upon and sold a certain portion of lot No. 2 and a certain portion of lot No. 4 of said real estate of said Patrick Macklin, which said portions are particularly described and set forth in plaintiff’s petition, and that at such sale Michael Kinealy, the defendant herein, became the purchaser of said portions of said lots, and a deed therefor was duly made and executed to him by the said sheriff. (5th) That immediately after the conveyance of said lots by the sheriff to said M. Kinealy, the latter filed his bill of equity in the circuit court of the city of St. Louis, against the said Patrick Macklin and Ann Macklin his wife, and, Francis L. Haydel, trustee, to set aside and annul the deed from Patrick Macklin to Haydel, trustee, for the use of Ann
‘‘conclusions of law.
í£(lst) M. Kinealy, having purchased the premises in question, and having obtained a decree in equity vesting the title in him in his suit against the Maeklins, from which no appeal was taken, became the absolute owner of the property,, and the deed of trust by him to Sutherland, under which he obtained a loan of $2,000, was legal and valid, as was also the conveyance to Sanderson under and by virtue of a sale under said deed of trust. (2d) The writ of error sued out In re Kinealy v. Macklin in the Supreme Court, was in law a new suit, and could not divest any bona fide purchaser of the tifie acquired from Kinealy; but the reversal of said cause by the Supreme Court and dismissal of Kinealy’s bill, vested in said Ann Maeklin the ownership of all property acquired by Kinealy and not disposed of by him,, and made him liable in damages for any property disposed of by him, before such reversal in the Supreme Court.’ (3d) The proceeding brought by Marie Maeklin under the deed from Ann Maeklin, to recover the possession of the premises from Allenberg et al., and her subsequent compromise with the defendants in said cause and other cases, did not estop her from maintaining the present suit. (4th) The assignment from Ann
The assignment of Ann Macklin and her husband to the plaintiff is as follows:
“St. Louis, Mo., January 30th, ’86.
“Be it known that I, Ann Macklin, and Patrick Macklin, her husband, do hereby sell, assign and convey to Marie J. Macklin all right, title and interest into all rents or all judgments for rents and all judgments for damages which may have accrued or which may hereafter accrue or which may accrue in any suit pending in any court or may accrue by reason of any judgment or decision of any court or any claims for rents which I may have for rents or damages against M. Kinealy, Charles E. Sanderson or his wife M. E. Sanderson, or Charles H. Bosse, or Christian Fred Woomhoomer or August Allenberg and all other parties who have occupied the property heretofore conveyed by deed to said Marie Macklin, and this assignment is made in consideration of my love and affection for said Marie J. Macklin and in the further consideration of one dollar the receipt of which is hereby acknowledged. “Ann Macklin.
“P. Macklin.”
Defendant’s main contention is that the circuit court erred in holding that the plaintiff was not
II. It is next contended that-the court committed error in rendering judgment for the amount of the incumbrance, and interest. Conceding for the sake of argument that-the court committed error in assuming that to be the proper measure of damages, it was error in the defendant’s favor, being $100 in the aggregate less than the actual damage found by the court to have been suffered by the plaintiff at the. time of the compromise, without interest. There is nothing in the contention that the court thereby permitted a recovery
III. It is next contended that the court erred in holding that Ann and Patrick Macklin, by the written assignment hereinbefore set out, transferred their right of action herein to the plaintiff. The assignment itself, while not very artistically drawn, is a sufficient answer to this contention. No particular form of words is required to constitute a valid assignment of a chose in action; any act showing an intent to transfer a party’s interest is sufficient for that purpose. Smith v. Sterritt, 24 Mo. 260; 2 Am. and Eng. Ency. of Law [2 Ed.], 1055. The finding of facts by the court is sustained by the evidence, and finding no substantial error affecting the merits of the case in its conclusions of law, and the judgment rendered in pursuance thereof, the same is affirmed.