Toler v. Swayze

| La. | Sep 15, 1847

The judgment of the court was pronounced by

Slidel-l, J.

The-defendants, Swayze and Lewis, are the assignees of a judgment obtained by J. L. Garrett against McCrory, Brewster, Stewart, and Toler, in solido. This judgment was obtained upon a note made by McCrory and Brewster, insólido, to the order of Stewart, and endorsed by Stewart, and then by Toler. The assignees of this judgment issued execution against Toler for the unpaid balance of the judgment; and Toler then brought the present action, and enjoined the execution. The alleged ground of the injunction was that, Toler had been discharged by the fraudulent collusion of Garrett, with Brewster, and the other parties who were primarily liable, whereby their property was fraudulently covered up, under the pretence of judicial sales, at which the property had been fraudulently sacrificed-. The defendants called their assignor in warranty. The court below decreed that the liability of Toler had been completely discharged by the conduct of Garrett, before the assignment to the present defendants. This decree is undeniably correct; and there has not been even an attempt in argument to vindicate the transaction, or dispute the correctness of the opinion of the district judge, who perpetuated the injunction.

As to the call in warranty, the court was of opinion that the warrantor was not bound ; that his warranty was of the existence of the principal obligation; that Brewster and McCrory, the principal debtors, were still bound for the balance of the claim uncollected at the time of the transfer to Swayze and Lewis, for aught that appeared to the contrary in the' evidence; and that the fact that the liability of Toler had been discharged at the time of the transfer, did not create a liability under the warranty. “ I am of opinion,” said the district judge, “ that the succession of Garrett is not liable on the implied warranty, until it is first established that the judgment does not exist as to any of the debtors.”

In this opinion we cannot concur. He who sells a debt, or an incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed. Civil Code, art. 2G16. In the present case the thing, sold was a judgment, in solido, against four persons, of whom Toler was one. There was an implied warranty that the judgment existed as it purported Ur exist; and even if, on the face of the judgment, Toler had been condemned as surety, it would not have varied the warranty. “ Qunnd une créance est vendue avec une hypothéque sur des immeubles déterminés, ce n’est pas assez que la. créance existe, il faut encore que l’hypothéque promise soit enliére au moment du contrat.; et si une portion des biens était affranchie de l’hypothéque, le cédant serait tenu de garantir le cessionnaire qui ne trouverait pas toutes les sftretés sur lesquelles il a compté, et dont l'absence pout comprornettre le capital qui doit luí étre remboursé.” Troplong, Vente, vol. 2, cb. 8, no. 933. When a debt is assigned the warranty is, not merely that the debt exists, but that it exists such as the parties understood it, that is, accompanied and protected by all the securities contemplated in the contract, of assignment. If, however, there was knowledge by the assignees, at the time when they took this transfer, of the frauds connected with this claim, upon which question of fact we express no opinion, they can demand no indemnity against the consequences of those frauds.

In revising the judgment of the court below, we shall remand the cause for a new trial by jury.

As to the judgment upon the claim of the sheriff, Ricard, for services in the execution of the writ enjoined, it cannot be examined, he not having complied with the condition of the order of appeal, by giving bond.

It is therefore ordered that, the judgment in favor of Toler be affirmed. It is further decreed that the judgment dismissing the claim of the warrantees be reversed, and that the issue made between the said Swayze and the said warrantor, be remanded for a new trial, by jury, the said warrantor paying the costs of this appeal.