18 Conn. 522 | Conn. | 1847
Lead Opinion
The first error complained of, is, that the court below decided, that the plaintiffs had an equitable title to the chose in question. In this, we think, there is error. The plaintiffs pretend' to no title, except one from Giles M. Eaton, a trustee, substituted, by the court of probate, for Edward Chappel. From whence did Eaton derive his title, if the chose in action was not, as confessedly it was not, in the assignment? the ‘«-design, intention and agreement of Clark” (though with whom it is not said,) to the contrary,
Other questions have been made, but they become unimportant, for the reasons already assigned.
We will remark, however, that it is by no means certain, any mistake in fact has intervened. And if not, then according to the cases of Hunt v. Rousmanier, 1 Pet. 1. and 8 Wheat. 211. Wheaton v. Wheaton, 9 Conn. R. 96. The Chesnut-Hill Resorvoir Co. v. Chase, 14 Conn. R. 124. and cases cited in 1 Story’s Eq. 124. a court of equity cannot interfere, and especially in behalf of a statute trustee against an attaching creditor.
The defendants deny that the claim of Clark against Williams, is, before judgment, of the nature of property, and capable of assignment. They say, it is a mere right of personal redress for a tort, and that to buy it is champerty and maintenance. It is certain that a right of action for a personal injury, as for an assault and battery, slander, malicious suit &c. is not assignable even in equity; nor would a right of action for an injury to personal property pass to an executor or administrator, except by the statute of 4 Edw. 3. or in this state, by the same statute, or that of 1836. Stat. 75. (ed. 1838.) Modern authorities, it appears to us, go far towards deciding, that this claim might have been assigned, had it been specified in the assignment. They» hold, that a right of action for an injury to property growing out of con
As the decision of the court does not rest on this question, we shall not further pursue it. We have a strong impression, that the chose in action, which is here the subject of controversy, would have passed, had it been in the assignment.
We would further remark, if the question of jurisdiction can properly come before us, under the assignment of errors, we do not perceive why the plaintiffs have not adequate relief at law. They can successfully defend in the scire-fa-cias ; for they have an equitable title to this chose in action, as was decided, in the case of Barber v. The Hartford Bank, 9 Conn. R. 407.
We advise that there is manifest error.
Concurrence Opinion
The question presented, is, whether the decree is erroneous, upon either of the grounds assigned in the motion in error. By a rule often repeated and enforced, no
The only enquiry then, is, whether the claim against Williams for the mutilation of the model, was assigned for the benefit of the creditors of Clark ; and if it was, whether the plaintiffs’ equitable title must fail, because it wras not assigned to the trustee in writing.
1. Was the claim assignable 1 Our statute, relating to assignments by insolvent debtors, for the benefit of their creditors, expressly authorises the assignment of choses in action. And such assignments are to be liberally and beneficially expounded.
The rule upon this subject, I understand to be this: A claim for a mere tort done to the person, as for an assault and battery, or for slander, is not assignable under the insolvent or bankrupt laws, because such rights are not considered in law as the subject of property. But for an injury done to property, by which it has become deteriorated, and the fund for the payment of debts diminished, the rule is different. 1 Chitt. Pl. 71, Thus, if the property of an insolvent debtor has been wrongfully taken from him, and converted to the use of the wrong-doer, the debtor may assign that claim for the benefit of his creditors, and the assignee may sue and recover for the same. In such case, it makes no difference whether the form of the action be trespass or trover. So too, a claim for an injury done to property, as well as for a conversion of the same, is assignable.
In the case of Hancock v. Caffyn, Chief Justice Tindal said, “ undoubtedly there is a large class of actions, in which, though an action lies for the bankrupt, the right does not pass to the assignees, as for injuries to the person, or reputation ; but we should not give due effect to the statute, if we were to hold, that a right did not pass arising out of an injury, which has lessened the amount of the fund belonging to the creditors.” “ Where the statute directs an assignment of all the bankrupt’s present personal estate, how can we except a right, in respect of which, the fund accruing to the creditors, would receive compensation to the extent to which the property of the bankrupt has been diminished ? The case of
The doctrine in relation to the rights of executors and administrators, has been fully recognized in this state ; and it has accordingly been holden, that an administrator can sustain an action of trespass against a person, who entered upon the lands of the deceased, in his life time, and burnt his mills. Griswold v. Brown, 1 Day, 180.
If, as said by Chief Justice Tindal, there is a close analogy between the title of an assignee under the insolvent laws and that of an administrator, it would seem to follow, that an assignment might be made to the former of a claim for damages arising from a tort done to property.
As the claim against Williams was of that character, it was competent for Clark, the owner, to assign it to a trustee, for the benefit of his creditors. And although such an assignment may not be sufficient to authorise the assignee to sue in his own name, yet it will confer an equitable title, which a court of chancery will protect, in the same manner as his title to any other chose in action, acquired by assignment. “ Every such assignment,” says Judge Story, “is considered in equity, as, in its nature, amounting to a declaration of trust, and to an agreement to permit the assignee to make use of the name of the assignor, in order to reduce the property into possession.” 2 Sto. Eq. sect. 1040.
2. If then the claim was assignable, the only remaining question is, whether upon the facts found by the court below, the plaintiffs’ title is so defective, by reason of the omission in the written assignment of Clark, that it cannot be sustained in a court of equity.
It is said, that the statute relating to assignments to trustees for the benefit of creditors, requires them to be in writing. And the statute in relation to transfers of real estate, requires all grants, bargains and mortgages to be in writing, and attested by two witnesses. Slat. 390 (ed. 1838.) And yet it is the constant practice of courts of equity, to correct mistakes in them, not only as against the makers, but against all persons claiming subsequently under them, with knowledge
It is however said, that this doctrine does not apply to deeds of assignment, by insolvent debtors, under our insolvent laws. But this precise question, and for aught that I can see, this precise case, has been recently considered and determined, by this court. Chamberlain v. Thompson, 10 Conn. R. 244. There Merwin, being seised in fee of certain lands, subject to a mortgage, agreed with the defendant to convey to him in fee simple, all his interest in those lands, for the benefit of bis creditors, and accordingly executed and delivered to him a deed, which, by the mistake of the scrivener, conveyed only a life estate, the words of inheritance being omitted. The plaintiff having knowledge of the mistake, afterwards attached the equity of redemption, and caused it to be set off upon his executions, and then brought his bill against the defendant. One question involved in the case, was, whether such a deed could be corrected ; and this court, after full consideration, held, that it might, and that the plaintiff could take nothing by the levy of his executions. The judge who delivered the opinion of the court, said: “That it is not only in the power, but that it is the peculiar province, of a court of chancery to correct mistakes in a deed, and mistakes of this character too; and that it is too well settled to admit of a question, or to require that authorities should be cited in proof. It has not indeed been denied in the argument, Is there any thing in the character in which the parties stand before the court, that should prevent the exercise of this very ordinary jurisdiction of a court of chancery ?” And after a careful examination of the subject, the court held, that there was no difference between the situation of the parties to that deed and that of parties to any other conveyance ; and that the deed, which in fact conveyed but a life-
j have been unable to distinguish that case from the present. There, as in this case, was a conveyance to a trustee for the benefit of creditors. There, as in this case, was a mistake of the draftsman, by which the deed was made to convey less than the parties had intended and agreed that it should. In the one case, the deed, which the parties had agreed should convey an estate in fee simple, conveyed but an estate for life. In the other, the deed, which the parties had agreed and intended should convey two claims against a certain individual, conveyed but one. In the one case, the controversy was between the trustee and an attaching creditor, and in the other, between purchasers under the trustee and an attaching creditor. In the former case, this court held, that the deed might be corrected and made conformable to the intent and agreement of the parties ; and the same doctrine was recog-nised in the other case. And how the latter decision can be reversed, without overruling the former, I have yet to learn.
But it is here said, that a conveyance in writing is essentially necessary to give the court of probate the jurisdiction conferred by our statute. Were this an application to that court for some order in relation to this claim, there might be some weight in the objection. But the application is, not to that court, but to a court of chancery, for the purpose of having an equitable title, acquired by purchase, converted into a legal one, so as to be made available in a court of law. The plaintiffs claim no title from or under the court of probate. The object of the statute relating to assignments by insolvent debtors, was merely to regulate the conduct of trustees in the execution of their trusts, and prevent those abuses, which had sometimes been practiced. The statute does indeed require such assignments to be in writing; but when so made, they stand upon the same ground as any other conveyances which the law requires to be in writing, as deeds of land. And a court of chancery has the same power to correct mistakes in the former case, as in the latter.
Such is clearly the law, as sanctioned by this court, in the case last cited. It is true, the precise objection urged in this case, that the statute requires a conveyance in writing to confer even an equitable title, and give the court of probate
But admitting that the deed of Clark, conveyed to the trustee not even an equitable title to the claim in question, how then will the case stand ? The trustee is no party to the present suit; and we have nothing to do with his title, except so far as it may be necessary to determine that of the plaintiffs in the original bill.
Now, the bill states, and these facts are found by the court, that the trustee, with the assent and approbation of Clark, sold at public auction this very claim to these plaintiffs ; and they, having thus become the purchasers, caused a suit to be instituted and prosecuted to final judgment, in the name of Clark, and with his understanding and consent, as the owners of that claim, at their expense, and for their benefit. If then the trustee had himself no title, why did he not confer upon the plaintiffs a perfectly good equitable title, when he sold it, with the knowledge and consent of Clark, for the purpose of paying his debts, and when that sale was virtually ratified by Clark, by suffering them to prosecute it in his name, as the owners, at great expense, and with full knowledge of all the facts ? In doing all this, he was but carrying out his original intention and agreement.
The sale to the plaintiffs was not made in trust; and therefore, neither the statute, nor the common law, required it to be in writing. The case, therefore, stands upon much higher ground than it would, were the trustee the plaintiff, seeking to establish his title.
“ It is clearly established,” 'says Judge Story, “ that if the true owner of property stands by, and knowingly suffers a stranger to sell the same, in his own name, as his own property, without objection, the sale will be valid against the true owner. For under such circumstances, his silence and concealment of his title, are treated as equivalent to an affirma? tive, that he has no adverse title to the property: and it
Here, if Clark, at the time of the sale, were the true owner, upon every principle of justice and equity, his conduct in relation to that sale, must forever preclude him from asserting his title. But Whitaker stands in no better situation. The case finds, that he had knowledge of all these facts ; that he assisted Williams in the defence of the suit, which the plaintiffs brought against him ; and after that defence had failed, and the suit had passed into judgment, he then turns round and attaches the debt against Williams as one due to Clark, and seeks to appropriate it to his own use. If, in equity, there was no debt due to Clark, then he acquired no lien, by virtue of his attachment as against the plaintiffs. For being chargeable with knowledge of all the facts respecting the equitable title of the plaintiffs, he can succeed only to the rights of Clark ; and if the latter, by reason of his conduct, in relation to the sale to the plaintiffs, would be precluded from appropriating the judgment against Williams to his own use, so must Whitaker be. It seems to me, that to allow him, under such circumstances, to prevail as against these plaintiffs, will be, in the language of Judge Story, to sanction a gross fraud upon their rights.
It might perhaps be said, that if such be the situation of the case, the plaintiffs have adequate remedy at Jaw, and therefore, cannot sustain their suit in chancery. How that question may be, it is unnecessary, and would be improper, for us to determine, because it is not involved in the present issue. Under our rule, the defendants in error have not been called upon to answer any such claim, and have not done it. Upon that question they have had no day in court.
The claim made is, that the decree is erroneous, because the claim, in its character, was not assignable ; and because it was not in fact assigned by Clark, in writing. Upon these questions alone have they been heard ; and upon them must the case be determined. And from the best examination which I have been able to give this case, my mind is led to the conclusion, that the plaintiffs in error have shown no
Judgment reversed.
