62 Ala. 113 | Ala. | 1878
The note sought to be subjected by the garnishment, is under the statute negotiable, and governed by the commercial law. — Code of 1876, § 2094. A transfer of it passing the legtfl title, made in good faith, before maturity, founded on a valuable consideration, and without notice, creates in the transferree an original and paramount right of action against the makers, cutting off all legal and equitable defenses to which it may have been subject, while it remained the property of the judgment debtor, to whom it was in the first instance delivered. Its negotiable quality, frqm which results this peculiar incident, is not affected, because it is payable to the order of the makers, and by them endorsed in blank. The blank endorsement, any holder has the right to fill, by writing- over it a direction to pay himself, or any other person. The liability of the makers and endorsers, is not thereby in any manner changed or enlarged. The endorsement and delivery of the note passes to the holder an unqualified power of disposition, and the authority to fill the endorsement, so that the person having-the legal title may be designated. — 2 Pars. Notes & Bills-, 19;
The transfer of negotiable paper in payment of a preexisting debt, is according to the known and usual course of business, and is founded on a valuable consideration, entitling the transferred to protection against equities and defenses, to which the paper may have been subject between the original parties. — Swift v. Tyson, 16 Peters, 1; Bank of Mobile v. Hall, 6 Ala. 639; Barney v. Earles, 13 Ala. 106.
The claimant Morris, having taken the note before its maturity, in payment of a pre-existing debt, without notice of any equities or defenses existing between the makers and Wechsler, to whom the note was originally delivered, the inquiry is, what effect upon the negotiability of the note had the garnishment sued out by the appellants, and served before Wechsler transferred, or Morris acquired it. The statutes authorizing the process of garnishment, are very general in terms; when founded on a judgment, or issued in aid of a pending suit, the words are, that it may be directed “ against any person supposed to be indebted to the defendant.” — Code of 1876, §§ 3218-19. When the suit is by attachment, the writ may be executed “ by summoning any person indebted to, or having in his possession, or under his control, property belonging to the defendant.” — Code of 1876, § 3268. A lien upon the money or effects in the possession of the garnishee, from the service of the garnishment, is declared. — Code of 1876, § 3280. The lien cannot be defeated or impaired by a subsequent bona fide transfer, made in ignorance of the process, or its service. — Dore v. Dawson, 6 Ala. 712. It is, however,'.'inchoate, imperfect, not conferring property, or a right of property, and dependent on. the rendition of judgment against the garnishee.
General as are the terms of the statutes, they have not been regarded and construed as embracing every demand which may be esteemed as a debt. It is only when there is a sum of money due by an agreement expressed or implied, capable of recovery in an action of assumpsit or debt, that a garnishment will reach it. — 1 Brick; Dig. §§ 313-314-320. The goods of a debtor may have been tortiously taken and converted, under circumstances which give him the right to recover them back, or to recover damages of the tortfeasor, or to waive the tort, and in an action for money had and received, to recover of him the money into which he may have converted them, the law implying the promise to pay it. This demand, though in an enlarged sense a debt, and though if the election is made to pursue an appropriate remedy, the
The words of the statutes are, as is insisted by the counsel for appellants, broad enough to include a debt due by bill of exchange, or negotiable promissory note, equally with a debt due by a bill single, or a promissory note not negotiable. And if this paper were of the latter character; if it was not negotiable; if the law of its own policy did not favor and encourage, and facilitate its circulation, assuring the title of all who take it before maturity, upon a valuable consideration, and without notice of facts which should impair its value or negotiability; there could be no doubt that the service of the garnishment created a lien upon it which no subsequent transfer could defeat.
Whether negotiable paper because of its peculiar qualities, must not be excepted Horn the general words of the statutes, whether these qualities do not relieve it from all liability to garnishment, is not the question. It may be, as was said in Mills v. Stewart, 12 Ala. 96, that if it is not endorsed before maturity, and so long as the payee remains the proprietor of if, or if endorsed after its maturity, until the maker has notice of the transfer, it is subject to garnishment by the creditors of the payee. The case before us is that of a transfer of the paper before its maturity to a bona fide holder, of which the maker had notice, and the holder intervening in the garnishment suit, asserting his title as superior to the lien of the garnishing creditor, though the garnishment was served before the transfer to him.
Notwithstanding the service of the garnishment, possession of the note remained with Wechsler, the judgment debtor; and the possession of negotiable paper endorsed in blank, carries with it the title to the holder. “ The possession and title are one and inseparable.” — Murray v. Lardner, 2 Wall. 121. Possession may have, been obtained, or may be retained wrongfully, still it is the evidence of the title upon the faith of which all persons dealing in good faith and for value, can acquire an indefeasible title. While it is a general rule, that all persons dealing with property which is the subject of a pending suit, can acquire from any of the parties or privies, only a title which is subject to be defeated by the judgment or decree therein rendered, the principle has not been extended to negotiable paper.— Winston v. Westfeldt, 22 Ala. 760 ; County of Warren v. Marcy, 97 U. S. 105. The safety of commercial transactions — and it is this the law-merchant intends to promote — has, as was suggested by Chancellor Kent, in Murray v. Lilburn, 2 Johns. Ch. 441, imposed this limitation on the principle of lis pendens. It may
The Circuit Court, .in its "rulings to which exceptions were reserved, conformed to these views, and the judgment must be affirmed.