6 How. Pr. 161 | N.Y. Sup. Ct. | 1851
This is an appeal from an order made at special term, denying the motion to set aside the execution issued in the above entitled cause.
The action was for the conversion of a certain amount of money in bank bills; and after the trial, but before the judgment was perfected, the plaintiff sold and assigned the judgment he
The judgment was perfected on the 10th of August 1849, and on the next day the defendant, without any notice of the assignment, paid the amount to the sheriff of Steuben county on two executions then in his hands for collection, in favor of Daniel G. Smith against the nominal plaintiff.
The defendant’s counsel insists that the plaintiff’s attorney by the assignment to him acquired no title to the judgment for two reasons. First, that the cause of action was tort, and not assignable; and, second, that at the date of the assignment there was no judgment in existence; and the assignment gave no title to the judgment perfected afterwards.
To sustain the first ground, Gardner vs. Adams (12 Wend. 297) and The People vs. Tioga Com. Pleas (19 Wend. 73), are relied upon.
In Gardner vs. Adams, the court only held that a tort was not assignable so as to warrant an action in the name of the assignee, as the court expressly declare in The People vs. Tioga C. Pleas; and in the latter case it was held that a tort merely personal was not assignable, so that a court of law would protect the assignee against' the subsequent fraudulent discharge of the judgment by the assignor. I confess I have never been able to see how the case of Gardner vs. Adams, upon the point relied upon, could be sustained upon principle, even if the court intended to go no farther than Cowen, Justice, says it did in The People vs. Tioga Com. Pleas.
For the purpose "of deciding that point the court assumed the mortgage to be valid and free from objection, and Gardner to be a trespasser in causing the property to be levied upon and buying it in at the constable’s sale. This being so, he acquired no title whatever to the property as against the mortgagee and his assigns. Nothing is better settled than that a trespasser acquires no title to the property he has unlawfully converted.
Even after action the title does not vest in the trespasser until after recovery of the damages and satisfaction. The property
He did not elect to bring his action but assigned the mortgage, which operated to transfer the title to the property to Adams, the assignee. Adams brought his action in March following, and the case shows that before suit he demanded the property of Gardner. Assuming the mortgage, therefore, to have been valid, there was nothing that I can perceive in the way of Adams • maintaining an action in his own name. He had the title and the right of possession, and had demanded the property. The case on that point must have been decided upon the old English doctrine that a tortious taking of property changed the title, which has never been countenanced here. If nothing was assigned to Adams but the mere right of action for the tort, by the assignment of the mortgage, he must have brought his action in the name of Hard if he could have maintained it at all. But Hard had elected not to resort to his right of action, but to insist upon his title and sell it; and his assignee demanded the property and brought his action for the conversion in refusing to deliver it on his demand. It was not the case of the assignment of a tort, but of the sale and transfer of the title to personal property which another had tortiously taken.
I agree that Adams could not have maintained the action in his own name without a demand and refusal after he acquired his title; because until then, as to his right, there had been no unlawful interfence with it (Hall vs. Robinson, 2 Comst. 296.) The case upon this point is without principle or authority to support it and should be overruled. Hoyt, Justice, in Hall vs. Robinson, in commenting upon this case says, if the demand by Adams was after the assignment, as the case I think clearly shows, “ the decision can not be upheld either upon principle or authority.
It will be seen on a moment’s reflection, that the two cases or rights of action, although both coming under the general classification of torts, have really little resemblance to each other. In the latter case there is nothing to assign hut a mere injury, which does not survive the decease of the injured party, and in which no person can he regarded as having any property. While in the former the right and title to property of which the assignor is still undivested, goes with the assignment and vests in the assignee, or in the executor or administrator, on the death of the party against whom the tort was committed. I take it an assignment of the cause of action would necessarily carry with it the assignor’s title to the property, because by prosecuting the action to judgment and obtaining satisfaction, the title becomes vested in the wrong doer and the purchaser must he regarded as acquiring the whole right by the assignment and authority to prosecute. The assignment of a bond merely carries with it by operation of law the mortgage, and draws after it the land (Jackson vs. Blodgett, 5 Cowen, 202; Green vs. Hart, 1 John. 590; Martin vs. Mowlin, 2 Barr, 978).
In the case of the death of a party whose property has been tortiously taken and who has not elected to bring his action in his life time, the title vests in the executor or administrator by
This view of the case answers the defendant’s second objection to the assignment, that there was no judgment when the assignment was executed.
The assignment carried the whole title to the subject matter of the action, and of course to the judgment, when perfected. As between the parties to the assignment, clearly the whole right passed to the assignee, and the defendant the moment the judgment was perfected, became the debtor of the assignee and not of the nominal plaintiff. Nor was any notice to the defendant necessary except for the purpose of protecting the assignee against the acts of his assignor.
The defendant’s counsel also contends that the payment to the sheriff on the two executions in his hands in tavor of Smith against the plaintiff to the amount of this judgment, operates as a satisfaction and discharge of the same, even conceding the validity of the assignment, in as much as the defendant had no notice of the assignment, and the code authorizes such payments to be made by any debtor of judgment debtors.
The Code, § 393, provides that “ after the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid.”
The difficulty in the way of the defendant is that at the time of making these payments to the sheriff he was not in fact indebted to the judgment debtor, whose debts he volunteered to pay.
The nominal plaintiff here had at that time no debt or demand against the defendant, which he could enforce at law or equity. It will hardly answer, I think, to say that as he had received no notice of the assignment he had a right to’ regard himself as the debtor of the plaintiff, and is therefore to be protected. The Code, it is true, authorizes a debtor of the judgment debtor to pay the amount of his debt upon any execution against the latter in the sheriff’s hands; but it does not make it his duty to do so.
The assignee of judgments and choses in action, will be protected against executions in the hands of the sheriff.
The Code has not gone quite so far as to make judgments and executions issued thereon liens upon choses in action, or a notice equivalent to a lis pendens. The defendant has not paid the debt of the right judgment debtor, in this case, and the judgment still remains unsatisfied against him.
The order of the special term must, therefore, be affirmed.