Townsend v. Quinan

47 Tex. 1 | Tex. | 1877

Moore, Associate Justice.

This is the second time this case has come before this court at the. instance of appellant. When here on the former appeal, the court held that the petition of Quinan, the plaintiff in the court below, did not disclose equities entitling him to the relief for which he prayed; that he should have averred the absolute insolvency of the defendant, Martin W. Townsend; and that he, Quinan, had not merely “acquired” the offsets upon which the action is brought, hut had bought and paid for them before he had notice of the assignment of the judgment, and, therefore, the defendant’s motion to dissolve the preliminary injunction should have been sustained. And even had these averments been made and proved, if the assignment was made in good faith and for a valuable consideration, the court seems to hold, if no laches was imputable to the assignee, B. B. Townsend, Quinan’s offsets would not be available to him, though he had no notice of the transfer of the judgment at the time he acquired them. (36 Tex., 548.)

After the case was remanded to the District Court, both the plaintiff and intervenor, B. B. Townsend, amended their pleadings, so that when the case came to trial for the second time, it presented altogether different issues from those upon which it had been previously determined.

The plaintiff, in his amended petition, alleges that he was the owner and holder of the offsets described in his original petition; that he had acquired them in good faith for value, without notice of the transfer of the Stith judgment to intervenor; that said Martin W. Townsend was then, and when said injunction was granted, utterly and hopelessly insolvent; that since the last term of the court he had learned, for the first time, that said Townsend had been discharged in bankruptcy in the year 1869; that said judgment against Stith, . Rust, and himself had never been unconditionally transferred to B. R. Townsend, but had, in fact, been only pledged or hypothecated, with the note on which it was based, to the intervener, B. R. Townsend, the executor of R. Townsend, deceased, on the 15th of May, 1866,"as collateral security, along with other property, to secure the payment of a note for §8,300, due to R. Townsend by said Martin W. Townsend, June 1, 1860; that various payments have been made on the debt thus secured; that the entire amount of the same had been discharged; and that said judgment then belonged to the assignee in bankruptcy of said Martin W, Townsend. He also alleged that on the 1st of February, 1873, Stith’s administrator had paid to the intervenor, B. R. Townsend, on said judgment, the sum of thirteen hundred dollars.

The jury to whom the case'was submitted on the issues made by the amended pleadings, rendered a verdict, for the second time, in favor of the plaintiff! And we are clearly of opinion, that it cannot be said that the evidence before them does not warrant or support their conclusion.

The generality of the assignments of error, as we have had occasion to complain in respect to quite a number of the records upon which of late we have had to pass, would justify our refusing to examine them. But waiving objection to them on this account, it is believed, if it is conceded that there are errors in some of the rulings of the court to which they refer, such errors are altogether immaterial to the proper determination of the case. For instance, if it was admitted that the motion to dissolve the injunction should have been sustained, certainly no injury can be said to have been sustained by appellant by the ruling of the court, unless he was in some way interested in the judgment, and had suffered damage by such ruling; and if we admitted that Chandler’s authority to give the credit which he entered upon Martin W. Townsend’s note to E. Townsend, was not properly or satisfactorily shown, how could that fact have affected the determination of the case, when it appears that appellant, B. B. Townsend, has himself acknowledged and allowed the same credit ?

We, by no means, are to be understood as intimating that the rulings of the court, when the case was formerly here, would have received our concurrence, if it was necessary for us to pass upon the questions upon which the judgment was then reversed. But, conceding that they are entirely correct,' and admitting that the instructions of the court to the jury may not have been, in all respects, strictly accurate, and that the issues upon which the cause should have turned were not presented to them, still, we think it clearly appears that . no other result than that reached by the court below could have been properly attained, or would have been warranted on the evidence by the former decision, even if the instructions given to the jury had been, in all respects, strictly accurate.

Admit, for instance, that the equity of the assignee of a judgment is superior to that of a surety, to set off debts which he has acquired against the insolvent plaintiff' in such judgment, without notice of its transfer, and that the fact that the transfer of the judgment was not absolute, but merely as a security for a previous indebtedness from the plaintiff to the assignee, in no way weakens his equity, it cannot be questioned that, when the debt thus secured is paid, the assignee can make no objection to the offsets which the plaintiff in execution could not himself make; and it is certainly too obvious for discussion that, after Quinan had brought this suit to sef off against the judgment Ms demands agamst M. W. Townsend, and B. B. Townsend had made Mmself a party to tMs suit, the latter could not, by purchasing the judgment, acquire any stronger equity against Quinan than he previously had. Concediug, then, as appellee did, in deference to the previous decision of the court, that B. R. Townsend was entitled to have his debt against M. W. Townsend satisfied, in preference to his right to credit for the amount of his offsets, still, it must be admitted that the subsequent absolute purchase of the judgment did not give intervenor a right to any other or greater privilege than he had when he made himself a party to the suit. He purchased, if we may so use the term, Martin W. Townsend’s equity of redemption in the judgment. But, by this suit, Quinan had acquired a priority of right to this equity of redemption. A court of equity would, therefore, require the purchaser t'o account for and apply whatever should come mto his hands on the judgment, after payment in full of the debt for wMch it was previously pledged to him, to the discharge of the debts sought to be offset against it at the time of his purchase.

We think the fair inference, from the evidence, is, that the $1,020, paid by B. B. Townsend to the assignee in bankruptcy of Martin W. Townsend for the securities transferred to secure his debt, together with the dividends which he received out of the other assets of the bankrupt, paid the balance due him on this debt. If so, he was only entitled to a priority over Quinan for the amount of $1,020 and interest; and this seems to have been paid by the thirteen hundred dollars in cash, paid him by Stith’s administrator. If Ms debt was thus paid, then Quinan was justly entitled to have Ms claims offset against the balance of the judgment; and if these claims, together with said sum of thirteen hundred dollars, are equal to the amount due upon it, as we suppose they are, appellant has no cause to complain of the judgment. If they are not, or if his debt against Martin W. Townsend has not, as we infer, been paid in full, an exception should have been taken, plainly pointing out the error in this particular. As this has not been done, this court is not called upon to enter into a calculation to ascertain whether or not the jury may have made an improper or erroneous computation of these different sums.

There is no error in the judgment of which appellant has any cause to complain, and it is therefore affirmed.

Affirmed.