Burgess v. Cave

• Decision Date: 28 February 1873
• Parties: G. D. BURGESS, Respondent, v. MARION CAVE, Appellant.
• Court: Missouri Supreme Court

52 Mo. 43

G. D. BURGESS, Respondent,

v.MARION CAVE, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Linn County Court of Common Pleas.

A. W. Mullins, for Appellant.

G. D. Burgess, for Respondent.

I. The assignment passed no title to, the Respondent. It was not made on, nor was it attached to the record of the judgment., (1 W. S., p. 794, § 34; Baker vs. Stonebreaker, 34 Mo., 176.) nor was it attested by the clerk.

ADAMS, Judge, delivered the opinion of the court.

The defendant as sheriff of Linn County had in his hands and directed to him, an execution in favor of James M. Pendleton and Susan Pendleton, his wife, vs. George W. Easley, and at the same time, an execution in favor of Hayden and Wilson vs. James M. Pendleton. Easley, the defendant in one of the executions, paid the amount due from him, to the sheriff on the execution of James M. Pendleton and Susan pendleton, his wife, vs. George W. Easley.

The execution against Easley was dated the 7th day of November, 1869, and on the 12th day of November, 1869, the said Pendleton and wife, for value received and in good faith, assigned to the plaintiff their judgment against Easley, which assignment was in writing on a separate paper, but attached to the record of the judgment and attested by the clerk of the court.

The evidence showed that the note on which the judgment against Easley was rendered was given to Pendleton's wife at the request of Pendleton, and that the wife had no connection with the transaction in which the note was given. The evidence strongly tended to show that the plaintiff notified the defendant (sheriff) before the payment by Easley, that he was the owner of the judgment of Pendleton and wife vs. Easley, and that the judgment had been assigned to him.

The defendant (sheriff) instead of holding the money that was paid by Easley for the plaintiff, who was assignee of the judgment against Easley, applied it to the payment of Hayden and Wilson's judgment against Pendleton.

The statutory mode of assigning judgments (1 W. S., 794, § 34,) is cumulative and does not prevent a party from making an equitable assignment in any other lawful way. When it is made under the statute before the execution is issued, it becomes the duty of the clerk when he issues an execution to indorse it for the use of the assignee. The execution in this case was already in the hands of the sheriff when the assignment was made, and could not be so indorsed. But the notice by the assignee of his ownership of the judgment was sufficient to require the sheriff to hold the money for his use; after such notice he had no authority to apply it to the execution of Hayden and Wilson vs. Pendleton.

It may be conceded that the transfer was not complete as to the debtor, without notice to him, and that before notice he would have the right to pay the debt to his creditor or to the sheriff under the statute, on the other execution.

But as the sheriff himself was notified of the assignment when the money was tendered and paid by Easley to him, he could only receive and hold it for the benefit of the assignee. The money became a trust fund in the hands of the sheriff, and it was his plain duty to pay it to the assignee. The only material question was one of notice by the assignee to...