8 Watts 188 | Pa. | 1839
The opinion of the Court was delivered by
The defendants in error, being the plaintiffs below, claimed to be the rightful owners and holders of a bond, executed by William Sharman on the 6th day of August 1819, binding himself to Daniel Strohecker in the sum of three thousand eight hundred and six dollars and forty-nine cents, to be paid to the said Daniel, his acting attorney, &c., conditioned, however, for the payment of one thousand nine hundred and three dollars and twenty-four cents, by the said William Sharman, with lawful interest thereon, from its date, which is the same .of its execution, to the said Daniel Strohecker, in one year thereafter. The real estate of William Sharman, or at least a part of it, had been sold by the sheriff, under the authority of judicial process, and the money arising therefrom, brought into court for appropriation. And it would also seem, according to the understanding of the parties, that the party justly entitled to demand and receive the money due on the bond, whoever he might be, was to be paid the same out of a balance of the money
• The question then raised here, is, Did any right or title, either legal or equitable, to the bond, pass under this assignment to the defendants in error? It is very clear that the legal title was not thereby transferred; because that being vested in Daniel Strohecker, the obligee, could only be passed, according to the act of assembly, .by an assignment in writing made and executed in the name and under the hand and seal of the obligee, either by himself in person, •or by his attorney in fact, legally authorised to do so. And though •the letter of attorney gave full power to John Strohecker to execute and make such assignment of the bond, in the name of Daniel Strohecker, to the defendants in error, yet it is perfectly clear that he did not do so. The assignment throughout, purports to be made by John Strohecker, the attorney, in his name, and not by, or in the ■name of Daniel Strohecker, his constituent, the obligee in the bond, and to be signed and sealed by John Strohecker for himself individually, and not for or on behalf of Daniel Strohecker. And in fact, it would rather seem to have been the understanding of John Strohecker and the defendants in error, at the time of executing the assignment, that it should be so, because it contains a covenant, in case the amount due on the bond could not be recovered from the ■pbligor, that, then the assignor should pay the same, together with
Judgment reversed, and a venire de novo awarded.