4 S.C. 10 | S.C. | 1872
The opinion of the Court was delivered by
So much of the decree of the Circuit Court as determines that an attorney at law, by virtue of his mere power in that relation, cannot execute a valid assignment of a judgment and execution obtained by him for his client, is sustained by the authorities therein referred to. The conclusion, too, can be vindicated on principle, irrespective of a regard to the duties and obligations which result from the relation. The right to assign follows from the possession of the legal title, unless the interest is only of an equitable character. A plaintiff holds his judgment by a legal title, and this he can only transfer directly by himself or a duly constituted attorney in fact. The exercise of the power by Mr. Summer was not ascribed to any authority save that claimed for him as the attorney at law in the case.
His right to compromise depended on the facts and circumstances proved on the trial, and the conclusion of the Circuit Judge from them must stand, unless shown to be so entirely erroneous as to justify our interference by impressions from the evidence altogether contrary to his own.
Even assuming, as is claimed by the argument for the appellant, that Mr. Summer was authorized to compromise the case, in point of fact he did not carry out the purpose which it is said he was to effect. A compromise implied a settlement with the defendants on the executions, by a discharge or satisfaction, in consideration of a receipt from them of a lesser sum than the amount of the debts.
The judgments for their full face value still remained open against them, with no change except that they were to be held for the benefit of a third party, who was to profit by the arrangement.
The claim of the appellant to have a credit on the fi. fa. for the -amount'of the check is inconsistent with the position which he asserts as assignee. If he is the owner of the debt, a reduction of it by the credit is against his interest. There is not a particle of proof that he advanced the amount at the request either of B. M. Blease or T. W. Blease, with the understanding that the judgments were to be left open to that extent for his benefit. On the contrary, he alleges he paid the money in consideration of the assignment of the debt, and now contends that, by reason thereof, he is the legal owner.
The defendant is entitled to the draft. It appears, by the pleadings, to be in the hands of the plaintiffs’ solicitors, delivered to them by Mr. Summer, to whom it was returned. It is but equitable that if the plaintiffs are remitted to their original position in regard to the judgments, it should be restored to him. The tender of it by the plaintiffs, and the relief prayed on their part, repudiates its ownership by them.
There was error in so much of the decree as directs the sale of the house and lot by the Sheriff. Neither he nor the defendants in the executions were parties to the proceeding. When the assignment was ordered to be set aside the judgments were under the control of the plaintiffs, subject to any objections which the defendants, B. M. Blease and T. W. Blease, or either, might lawfully interpose, or to any rights growing out of the equities of third persons. The decree must be modified.
It is, therefore, ordered- and adjudged that so much of it as sets aside the said assignment, and requires the return of the said executions to the office of the Sheriff of Newberry, be confirmed. It is also ordered that the plaintiffs, by themselves, or their solicitors or agents, return to the said defendant, H. H. Blease, the draft referred to, and that so much of it as directs a sale of the house and
