Wintz v. Gordon , 2 Posey 212 ( 1880 )

Opinion.— This assignment cannot, without great liberality, be regarded as a compliance with the statute (Paschal’s Digest, article 1591) requiring, on appeal, the appellant to file “ an assignment of errors, distinctly specifying the grounds upon which he relies.” Taking the first assignment as good, and as questioning the sufficiency of the testimony to support the judgment, or rather as inviting attention to the testimony and challenging the judgment of the court upon its insufficiency to grant the relief asked, the record has been carefully examined.

The testimony of the plaintiff herself and of Stuart,, the defendant in the execution, was distinctly to the ownership of the note upon which the Oliver judgment was rendered. The testimony of defendants, however, showed a transfer of the note by the plaintiff, Mrs. Wintz, with assent of her husband, before maturity, to Oliver. The testimony also tended to disclose that such transfer was intended to be only for collection.

The title of the defendants Sheffield and Goodrich, by their purchase in good faith, is unaffected by any fact in .evidence; Goodrich, as a witness, distinctly denies such notice on the trial. Sheffield, in his answer to the bill, denied the title of plaintiffs, and asserted his Iona fide purchase. As there is no testimony affecting Sheffield or Goodrich with notice, the only remaining question is whether their purchase would conclude the plaintiff.

A judgment being the conclusion of the law upon the facts, as between Oliver and Stuart, the proper tribunal had passed upon their relations as creditor and debtor. The process of the court, authorized by the laws of the state, becomes subject to the call of Oliver to enforce this claim. This claim and its incidents resulting from becoming a judgment are subject to sale by Oliver.

In discussing the rights of assignees of a judgment, Baldwin, J., in Wright v. Levy, 12 Cal., 262, argues: “It is conceded that the assignor of the judgment is only the holder of an equity, with the right to use the judgment and the name of the plaintiff to enforce it, and stands in the shoes of the assignor as to all defenses which existed against the judgment between the parties to it. It is like a note assigned after due. Citing Story on Bills, § 220. The judgment is property, which may be purchased like any other property. The purchaser is bound to inquire into the defenses of the debtor. He has the means to do this, but he could not be held to inquire into latent equities existing in the hands of third parties. The law, when it made this sort of property subject to sale, gave it the protection it extends to all other property.”

This rule is said to be recognized except by the courts of Vermont. Freeman on Judgments, sec. 428. The assignees become the owners of the judgment. McFaddin v. McGreal, 25 Tex., 79. The case of Dodd & Co. v. Arnold, 28 Tex., 101, cited by appellant, does not apply to the case where the possession and legal title are parted with by the former owner.

The purchaser of real estate from the holder of the legal title, and without notice of a trust, is protected, although the beneficiary be a married woman; an equal or greater reason would protect the defendants in buying from the apparent and legal holder. Cooke v. Bremond, 27 Tex., 460; Flanagan v. Pearson, 50 Tex., 383.

The appellant, in argument, insists that at least judgment should have been rendered against defendant Mrs. Oliver. The pleadings were not framed for any such judgment. The original petition sought to intercept the funds in the hands of the sheriff. The amendment upon the sheriff’s answer made Goodrich a party, and sought to recover from him and Sheffield, Jr., the sums by each respectively received. The record does not show an appearance by Mrs. Oliver, nor any default against her. Ho attention or importance was attached to her as more than a necessary party' to the bill for injunction. The appeal, evidently, was not taken to reach Mrs. Oliver.

The judgment should be affirmed.