87 Ill. 268 | Ill. | 1877
delivered the opinion of the Court:
The demand proposed to be set off had no connection, in its origin or nature, with the judgment assigned. Whether it consisted of unsettled accounts or an account stated, its amount was never reduced to judgment. At the time of the assignment of the judgment, the assignee, while he may have had notice that the judgment debtor had a demand against-the assignor of the judgment, had no notice that the judgment debtor had any equitable right to have that demand set off against the judgment, or even that he claimed any such right. It is not shown that the assignor of the judgment was, at that time, insolvent. At the time of the assignment of the judgment, in October, 1875, notice was given to Kline that the assignment had been made.
In the case of Hughes v. Trahern, Admx. et al. 64 Ill. 48, this court said that, “in equity, the assignee of a judgment will be protected from any acts of the parties after notice.” In that case, Trahern assigned to Dougherty a judgment he had recovered against Hughes. At the time of the assignment, Hughes held a demand against Trahern, which was not in judgment, but was afterwards put in judgment. A bill was filed to set off this judgment against that assigned to Dougherty. It appeared that Dougherty took the judgment, to hold in part for himself and in part for the assignor. This court directed that an account should be taken to ascertain Dougherty’s real interest in the judgment, and to that end it should be ascertained the amount of the indebtedness to Dougherty, from Trahern, before and at the time of the assignment, and the amount of money Dougherty had paid on the assignment, before the demand of Hughes was merged in judgment and the demand made that the same be set- off, and that, to that extent, the rights of Dougherty, as assignee, should be protected against the proceeding of Hughes to have his demand set off against the judgment assigned to Dougherty. In that case, it appeared that Trahern’s estate was, at the time of filing the bill, insolvent. This case falls within the principle on which the Dougherty case was decided, and we hold that the court erred in permitting the claim of set-off to defeat the equitable right of appellant to have payment of the judgment enforced.
Appellees insist that the assignment of the judgment by White to Ullmann did not operate as an assignment of the appeal bond. We can not concur in this view. The assignment of the judgment, in equity, passed to Ullmann all the beneficial interest White had in the judgment, and all its incidents. The assignment of a debt carries with it, in equity, the mortgage made to secure the debt. This appeal bond stands merely as an assurance that this judgment shall be paid, and, as an incident to the debt, all beneficial interest in the bond passed to Ullmann by the assignment.
The decree must be reversed, and the cause remanded with directions to grant the relief sought by the bill.
Decree reversed.
