6 Pa. Super. 279 | Pa. Super. Ct. | 1898
Opinion by
On May 9, 1895, Frank Skinner sued George Chase, and on December 6, 1895, obtained judgment for want of an appearance.
On December 9, 1895, Chase applied to have the judgment opened. His application was granted, and on April 8, 1897, the plaintiff obtained a verdict for 1223.97, upon which judgment was entered on April 13th.
On December 16, 1895, Skinner borrowed of William P. Elder $20.0, and as collateral security for the loan (which was renewed in June, 1895), pledged his wife’s diamond earrings, and assigned the above-mentioned claim against Chase. On January 6, 1896, this claim was marked of record to Elder’s use; and so the record stood at the time of the trial and at the time the rule under consideration was granted. It appears, however, that on June 1,1896, the loan was repaid by the check of Skinner’s wife drawn upon her personal bank account, and the diamonds were returned to her. At the same time Elder executed the following receipt and assignment: “ Received from Mrs. Sallie P. Skinner her check for two hundred dollars in full payment for a loan for that amount made by me to Frank Skinner on June 17, 1895. I hereby assign and transfer unto her all my interest in the claim of Frank Skinner against George Chase in common pleas No. 2, June term, 1895, No. 52, previously assigned and marked to my use as collateral security by Frank Skinner, the plaintiff, and all benefit to be derived therefrom and I direct that said claim be marked to the use of Sallie P. Skinner.”
It is said that this transaction was a fraud concocted by Skinner for the purpose of hindering and delaying his creditors by the use of his wife’s name; but this position is not sustained by any competent and satisfactory proof. On the contrary, the uncontradicted' testimony is, that the diamonds were given to Mrs. Skinner by her father; that she had a separate estate which she inherited from him; that the money which she advanced to pay the Elder loan did not come from her husband, and that he has not repaid her.
It is urged, in the second place, that as she bought the judgment with notice that Chase owned the Kennedy judgment against her husband she took subject to the right of Chase to set off the latter judgment against the former. If she were a mere purchaser this would be true: Filbert v. Hawk, 8 W. 448;
Here, however, another difficulty is encountered. Chase bought the Kennedy judgment without any notice whatever that there was an outstanding equity in any one which would prevent him from setting it off against the judgment that was entered against him. Indeed, it was not until after this rule was made absolute that Mrs. Skinner filed her assignment or attempted to have the judgment marked to her use.
. In view of these facts was Mrs. Skinner’s equity superior to that of Chase, and was the court bound to recognize it in the present proceeding ?
An assignee of a chose in action not negotiable takes it subject to all the defenses to which it was subject in the hands of the assignor, including the right of the debtor to set off any claim against the assignor before notice of the assignment: Rider v. Johnson, 20 Pa. 190; Smith v. Ewer, 22 Pa. 116; Keagy v. Com., 43 Pa. 70, 73. Proof of no notice of the assignment is not necessary to establish the right of set-off, but proof of notice is necessary to defeat the right: Burford v. Fergus, 165 Pa. 310. But a cross demand to be set off must belong to the defendant before suit brought: Pennell v. Grubb, 13 Pa. 552; Speers v. Sterrett, 29 Pa. 192; Gilmore v. Reed, 76 Pa. 462. For this reason alone Chase could not have offered the Kennedy judgment as a set-off on the trial of the issue. He nevertheless had a right to purchase it with a view to use it as a set-off against the judgment that had been entered against him or that might be entered after the trial of the issue. It was as available for that purpose as if he, personally, had obtained a judgment against Skinner on December 11, 1895, the date of
. “ In cases such as this — appealing largely to the discretion of
Order affirmed and appeal dismissed at the cost of the appellant.