Planters' & Merchants' Insurance v. Tunstall

| Ala. | Dec 15, 1882

B KICK ELL, O. J.

The demurrers to the complaint, and the instructions requested and refused, embrace the same questions: 1. Whether the assignment of a promissory note by a separate instrument in writing, though founded on a valuable consideration, is complete, passing to the assignee the equitable title to the note, before its delivery, or without notice to the maker? 2. If, at the time of the assignment, the note is held and claimed adversely to the assignor, is not the assignment void as savoring of champerty or maintenance ?

The general principles governing the assignment of dioses in action, and the rights passing to the assignee, seem to be well and definitely settled. The doctrine of the common law was, originally, that to a stranger they were incapable of transfer, for the same reason that things lying in entry or re-entry could not be granted. The doctrine never prevailed in courts of equity; and in courts of law it was gradually modified, until such assignments were recognized, and, though in the name of the assignor the assignee may have been compelled to pursue legal remedies, the court protected him against any unconscientious conduct of the assignor, — against his acts or admissions subsequent to the assignment. It was said by a learned judge, “ that if an assignee of a chose in action have an equity, that equity shall be no exile to the courts of common law.”—Edwards on Notes & Bills, 53; Lamkin v. Phillips, 9 Port., 98" court="Ala." date_filed="1839-01-15" href="https://app.midpage.ai/document/lamkin-v-phillips-6529471?utm_source=webapp" opinion_id="6529471">9 Porter, 98; Chisholm v. Newton, 1 Ala. 371" court="Ala." date_filed="1840-06-15" href="https://app.midpage.ai/document/chisholm-ex-rel-bigelow--co-v-newton-6501306?utm_source=webapp" opinion_id="6501306">1 Ala. 371; Brown v. Foster, 4 Ib. 382; Vickers v. Mooney, 6 Ib. 99. The assignment did not pass the legal title to the note. That was incapable of transfer, otherwise than by an indorsement, and delivery of the note. -Before the present statute, if the assignee had been compelled to sue the maker, or any other party to the note, and the assignment passes an equity, the suit must have been prosecuted in the name of the assignor, in whom the legal title resided. Under the statute, the suit must have been prosecuted in the name of the assignee, having the equitable or beneficial interest. — Code of 18T6, § 2890.

Though the assignment was not operative to pass the legal title to the note, if founded on a valuable consideration, it would create a right and equity which a court of equity -would compel the assignor, and all claiming under him with notice, to carry into effect, upon the same principles, and for the same reasons, on which the execution or performance of other contracts would be compelled. The form of the assignment is not important. “ Any words, in fact, are sufficient, which show an intention of transferring or appropriating the eh ose m action to or for the use of the assignee.” Any thing which shows, on the one side, the intention to assign, and from which the assent of the other to receive may bo-inferred, if there is a valuable consideration, in the contemplation of a court of equity will operate as an assignment. — 3 Lead. Cases Eq. 357; 2 Story’s Eq. § 1047. “Every such assignment” says Judge Story, “is considered, in a court of equity, as in its nature amounting to a declaration of trust, and to-an agreement to permit the assignee to make use of the name of the assignor, in order to recover the debt, or to reduce the property to possession.” — 2 Story's Eq. § 1040.

The sufficiency of the consideration for the assignment — the security of an antecedent debt, or indemnity for an existing liability for which the assignor was primarily liable — is not questioned. If the consideration for an assignment be valuable, it is not necessary that it should be contemporaneous, Or executory. An antecedent debt, or a pre-existing obligation or duty, as between the assignor and assignee, is sufficient; “ for an existing obligation is a sufficient cause for eveiy transaction, tending directly or indirectly to its fulfillment.” — 3 Lead. Oases Eq. 368. In its terms, the assignment is unequivocal, denoting plainly the intention to pass to tlie assignee dominion and control over the note.

The assignment being in its terms unequivocal, transferring by appropriate words the note and all control over it, and -having a valuable consideration to support it, creating a trust a court of equity would enforce, was irrevocable by any rightful act of the assignor. As between the assignor and the assignee, no other or further act was necessary to its completion, or to its validity—Wood v. Partridge, 11 Mass. 488" court="Mass." date_filed="1814-11-15" href="https://app.midpage.ai/document/wood-v-partridge-6404242?utm_source=webapp" opinion_id="6404242">11 Mass. 488; Muir v. Schenck, 3 Hill (N. Y.) 228.

In order that third persons — the maker, or any other party to the note, or the holder, whether he be the bailee or the agent of the assignor; or, as in this case is claimed, having possession and claiming adversely to the assignor — may be bound or affected by the assignment, notice of it ought to have been given them ; and not being informed of facts which ought to have put them on inquiry, all dealings they had with the assignor, in good faith, and upon a valuable consideration, would be protected. If the assignee desired to protect himself against such dealings, — -if a conversion of the assignment into a complete title in rem, and not merely a right perfect as against the assignor, had been invoked by the assignee — notice thereof was necessary. But, if he was willing to trust the good faith of the assignor — if he was satisfied that lie would not take advantage of the want of notice to enter into dealings and transactions with any party to the note, or with the holder — notice was not necessary. Without notice, without a delivery of the note, as against the assignor, the assignment was complete.—Dearle v. Hall, 3 Russell, 1, cited in 3 Lead. Cases Eq. 320-21; Wood v. Partridge, supra. There is some diversity of opinion, whether subsequent purchasers or assignees, not having notice, would be protected against the prior equity of the assignee. This case does not involve the rights of any subsequent assignee or purchaser, or of any dealings with the assignor subsequent to the assignment.

The assignment does not contravene public policy, because at the time it was made the appellant had possession of the note, claiming to hold it as collateral security for debts due from the assignor. The assignment was of the entire interest in the note, and there was in it no element of champerty or maintenance. It is the settled doctrine of a court of equity, that assignments of the whole interest in a contract or other security, when not savoring of maintenance or champerty, even though at the time of the assignment they are the subjects of pending suits, will be supported. — 2 Story’s Eq. $$ 1051-55. Whether the appellant had any just claim to the note as collateral security for debts of the assignor, is a question which we presume was properly submitted to the jury. However this may be. the case is now presented as if it were a false clamor. The money received by the appellant in satisfaction of the note, was the money of the ap-pellee, in whom the equitable title to the note resided. An action for money bad and received is an equitable remedy, and may be supported, when the defendant has received money which, in good conscience, he ought not to retain, and which, ex tpqiw fit bono, belongs to the plaintiff.— 1 Brick. I >ig. ^ 140,572.

The only remaining question, of any importance, is the competency of Lathrop as a witness; and we have had much difficulty in reaching a satisfactozy solution of it. Embezzlement, at the common law, unless it amounted to larceny, was a mere breach of trust, and not indictable. As it is defined, described and punished under our statutes, it embraces acts which at common law were mere breaches of trust, and other acts which were larceny. These are all visited with the same punishment as larceny; the grade of the offense, and the severity of punishment, depending upon the value of the goods embezzled. — Code, §§ 4377-79, ’81, ’83, ’84. The section of the Code, under which it is probable Lathrop was convicted, is section 4377, declaring that “ any officer, agent or clerk of any incorpoz’ated company, or clerk, agent, servant or apprentice of any private person or persons, who embezzles, or fraudulently converts to his own use, or fraudulently secretes with intent to convert to bis own use, any money or property which has come into his possession by virtue of his employment, must be punished, on conviction, as if lie had stolen it." It is obvious, under this statute, a conviction could be had, though the money or property was in the constructive possession of the company, or of the employer, the clerk, servant, or agent, Ac., having the bare charge and oversight. And it is certain that, if he liad only a bare charge and oversight, the company or employer having the constructive possession, and fraudulently converted the goods to his own use, he was guilty of larceny at common law, and upon conviction he would have been rendered infamous, and disqualified as a witness in any case, civil or criminal.-Taylor v. State, 62 Ala. 164" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/taylor-v-state-6510269?utm_source=webapp" opinion_id="6510269">62 Ala. 164; Sylvester v. State, at present term.

We are not informed by the bill of exceptions whether the conviction of Lathrop was for acts which at the common law were mere breaches of trusts, or for acts which would have constituted larceny. It may be, that if a statute declares criminal acts which at common law were civil wrongs only, a conviction of them, though punished ns felonies, would not render the person convicted infamous, and disqualify him as a witness. Harrison v. State, 55 Ala. 239" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/harrison-v-state-6509395?utm_source=webapp" opinion_id="6509395">55 Ala. 239. But a conviction of acts which were at common law of the nature of the crimen falsi, and punished, though under a statuté which merely changes their denomination, must be followed by the same incidents which would have followed at common law, unless these are qualified by the statute. — Bish. Btat. Crimes, 139. We can not indulge the presumption, to place the City (hurt in error, that the conviction of Lathrop was of acts which at the common law were breaches of trust and not larceny. That presumption? must be indulged, before we could pronounce that he was a competent witness.

The statutes which authorize the taking of the depositions of persons confined in the penitentiary, has no reference to, and was not intended to enlarge their competency as witnesses. The only purpose it was intended to accomplish, was to provide a mode by which the evidence of sncli persons, when competent witnesses, could he obtained speedily. It would be a little singular, if a person convicted of an infamous offense was rendered competent, while under the conviction he was suffering punishment, and incompetent so soon as he had endured the punishment to'its utmost.

A party cross-examining without objection a witness whose deposition is taken, -is deemed to waive all objections to the competency of the witness. But if he does not cross-examine, it is sufficient if the objection is made before entering on the trial.

Affirmed.