Succession of Delassize, 8 Rob. 259

Succession of Delassize

8 Rob. 259 | La. | 1844

Morphy, J.

A provisional tableau of distribution, or account, was filed by the dative executor of the deceased, wherein it is stated that Wm. Downing claims the amount of a judgment rendered on the 7th of December, 1839, in his favor and against the deceased, for $1553, but that this claim is resisted on the ground that under a fieri facias issued from the City 'Court of Lafayette at the suit of W. 11. B. Wills, a judgment creditor of Downing, the sheriff of the parish of Orleans seized and sold to Jean Dufour, all the right, title and interest of W. Downing in and to the said judgment against Delassize, and that, subsequently, the deceased settled with Jean Dufour for said judgment, whereby his debt to Downing was extinguished. To this account James Marlatt made opposition, claiming to be placed on the tableau of distribution as a privileged creditor of the estate for $1553, being the *260amount of a judgment against the deceased, which he alleged was transferred to him by Downing, in May, 1838, and which was duly recorded on the 12th of April, 1840. Marlatt’s opposition was dismissed, the judge below being of opinion that assignments and notices of assignments should be in writing in order to bind third persons; and that, even if they could be proved by oral evidence, that adduced in the present case, was insufficient, inasmuch as the claim exceeds $500. Marlatt has appealed.

We are unacquainted with any law prescribing that assignments, or transfers of debts or incorporeal rights shall be in writing. All contracts which are not expressly required to be reduced to writing, can, we apprehend, be made verbally. In the case of Hughes v. Harrison et al., 2 La. 89, this court held, that parol evidence was admissible to prove, the sale and transfer of a note payable to order, without endorsement or written transfer. A debt or a judgment is personal property, the assignment of which can always be proved by witnesses. As to the notice which must be given to the debtor, in order to render an assignment binding on third persons, we have repeatedly said, that no particular form is required, and it is enough if notice of the transfer be given to him so as to bring home to him the knowledge that his former creditor is divested of all his rights to the debt assigned. The fact of such notice may be proved like any other fact in a cause, according to the established rules of evidence. 12 Mart. 702. 1 Ib. N. S. 425. 5 Ib. N. S. 180. 6 Ib. N. S. 296. 17 La. 472.

R, M. Carter testified, that Marlatt had a claim for about 1700 or $800 against Downing ; that at the time, a suit was pending by Downing against Delassize for about $1200 or $1500 ; that to pay or secure the payment of his debt to Marlatt, Downing transferred to the latter the claim against Delassize in his (witness’s) presence, and witness gave notice of said transfer to Delassize, and also to the sheriff; that subsequently to said transfer, the judgment against Delassize was sold by the sheriff at the suit of Wills ; that witness was attorney for Marlatt, and subsequently .took steps for Marlatt, and on behalf of Downing, to recover the claim from Delassize.

Another witness, J. C. David, deposed, that in his presence *261Downing declared, that he had transferred his claim against De-lassize to Marlatt. This declaration of Downing, testified to by the second witness, is in our opinion a corroborating circumstance in support of the deposition of the first one, and renders it sufficient to prove the assignment of the debt to Marlatt. More than one witness was not required to prove the fact of notice to the debtor. We do not attach much importance to the circumstance that, after the assignment, the proceedings were continued in the District Court, and motions were made in the Court of Probates, in the name of Downing, as if no transfer had taken place. There is no law authorizing the substitution of an assignee’s name to that of the assignor on the records of the court; and it is customary, we believe, when a transfer of ¡¡this kind takes place during the pendency of a suit, to prosecute the same to judgment in the name of the original and apparent plaintiff, but for the benefit of the assignee. We are satisfied from the testimony, that the judgment obtained against Delassize, in December, 1839, belonged to Marlatt, under the assignment previously made to him by Downing; and that, therefore, the purchaser at the sheriff’s sale, made at the instance of Wills, in April, 1835, acquired nothing, when he bought all the right, title and interest of Downing in and to said judgment. The record shows, that this judgment was recorded on the 29th of April, 1840, and that, on the 5th of April, 1841, it was admitted to be subject to a credit of two hundred dollars, on a motion made to obtain an alias fieri facias against Delassize from the District Court.

It is, therefore, ordered, that the judgment of the Court of Pro-, bates be reversed, and that James Marlatt be placed on the account filed by the dative testamentary executor as a mortgage creditor for $1353, and his costs of suit in the District Court; and it is further ordered, that the account so amended be approved and homologated. The costs in both courts to be paid by tha estate.