Burnett v. Crandall

Citation63 Mo. 410
PartiesWM. BURNETT, Plaintiff in Error, v. JOHN J. CRANDALL, et al., Defendants in Error.
Decision Date31 October 1876
CourtUnited States State Supreme Court of Missouri

Error to Jackson Circuit Court.

Clark & Thompson, for Plaintiff in Error.

I. The assignment of part of a chose in action, without the consent of the debtor, is invalid and transfers to the assignee no interest in the debt. (Mandeville vs. Welsh, 5 Wheat. 277; Tripp vs. Brownell, 12 Cush. 381, 382; Sone vs. Fairfield, 13 Mo. 300.)

II. Such assignment is equally invalid in law and in equity. (Gibson vs. Finley, 4 Md. ch. 75; Tripp vs. Brownell, 12 Cush. 381, 382.)

S. P. Twiss, for Defendants in Error.

I. The payment of a liquidated and ascertained debt is no payment or satisfaction of the whole, even though it be received and receipted for as payment in full. (Wood vs. Wallace, 34 Ind. 226; Riley vs. Kershaw, 52 Mo. 224; Harriman vs. Harriman, 12 Gray, 341; Bailey vs. Day, 26 Me. 88; Perkins vs. Lockwood, 100 Mass. 249; Vanhouten vs. Reiley, 14 Miss. 440; S. C. 6 Smedes & M. 440; 2 Chit. Cont. [11th Ed.] 1101.)

II. The assignment by Geis to Crandall of an undivided one-half of the judgment with notice thereof, to Burnett, is an equitable assignment, and created a trust in favor of Crandall, which was an equitable lien upon the judgment, which the courts of equity will enforce. (Smith vs. Everett, 4 Brown's Chan. 64; Sett vs. Morris, 4 Simon, 607; Watson vs. Duke of Wellington, 1 Russell & Mylne, 602, 605; 9 Cow. 34; 9 Cow. 747; 5 Cow. 376; Kendall vs. United States, 7 Wall. 113; Sto. Eq. Jurisp., § 1044 and cases there cited.)

SHERWOOD, Judge, delivered the opinion of the court.

The record discloses: that in January, 1871, a judgment by default for the sum of $500 was rendered in the Kansas City court of common pleas, in favor of one John Geis, and against Wm. Burnett, in an action for an assault and battery. On the day of its rendition, Geis, by an instrument to that effect, assigned one-half of the judgment to the defendant, Crandall, who was his attorney in the action referred to. After vainly endeavoring to set the judgment thus obtained aside, and of which it seems he had no knowledge until seeing an account of such recovery in the city papers, Burnett gave bond and took an appeal to the Supreme Court.

In the June following, Geis made a formal assignment on the record to Crandall, in accordance with the terms contained in the paper before mentioned. In the next succeeding July, Geis, for the sum of seventy dollars, “and for other good and valuable considerations,” as recited in a paper to that effect signed by him, “settled with William Burnett the judgment in the above entitled cause (referring to the judgment already mentioned), and accepted and received the above sum in full satisfaction and discharge of the same.” The paper in question also authorized the judgment to be “canceled and dismissed at the cost of said William Burnett.” At the time of this adjustment Geis received from Burnett a writing, which, after reciting the settlement made by them, contains in addition thereto, this clause: “Now this is to certify that I agree to protect and to indemnify and save harmless the said John Geis against all claims for damages which J. J. Crandall, the attorney of said Geis, may have against him on account of said settlement of said judgment.”

Both the papers above mentioned contained, in their respective captions, a recital of the pendency of the appeal in the Supreme Court. Notwithstanding his agreement and receipt in full satisfaction, Geis, (at whose instigation does not clearly appear) presented a transcript in the Supreme Court, and had the judgment affirmed. This occurred in July, 1872. Shortly thereafter, Crandall caused an execution to issue on the judgment thus affirmed, and made an indorsement on the writ as attorney and assignee, requiring the sheriff to collect one-half the judgment for his use, and stating that the residue had been remitted and satisfied.

Thereupon Burnett filed his petition making Geis and the sheriff, Gray, defendants. Crandall was subsequently added as party defendant. Geis made no answer. A temporary injunction was granted, but on final hearing, the restraining order was so far modified as to allow the collection of the amount claimed by Crandall. In consequence of this ruling, the plaintiff has appealed.

The case at bar presents but two salient questions:

1st. Whether it is permissible for a claimant or creditor to assign a portion of his claim or debt, without the consent of the person against whom the claim is made or the debt asserted?

2d. If the transfer of a moiety occur without such assent, whether it is competent for the original claimant to effect a compromise of the whole claim?

Relative to the first point:

I.

It is a familiar doctrine at law that a portion of a debt, claim or judgment is incapable of assignment in the absence of the debtor's consent. This was so ruled by this court in Love vs. Fairfield (13 Mo. 300), under circumstances very similar to those now before us. It is true that was a case which arose on a motion filed by the attorneys of the plaintiff, who were also assignees of a portion of the judgment, to set aside the entry of satisfaction made on the execution under the plaintiff's instructions, and to award another execution; but it is difficult to see why the same principle should not dominate even where equitable interposition is invoked. For it must, it would seem, be obvious that the mischief incident to these partial assignments, these unauthorized divisions of a single debt into numerous and disconnected fractions, would be as great, and therefore the prohibitory reasons of equal cogency in a court of equity as in a court of law. This, for the most part, was the view taken in the case of Mandeville vs. Welch (5 Wheat, 277), on which the decision in our own court already referred to was chiefly based. The doctrine here asserted has also found direct recognition in courts possessing chancery powers. (Colyer vs. Fallon, 1 Turn. & Russ. 470, 475, 476; Gibson vs. Finley, 4 Md. Chy. 75.)

The learned judge and accomplished author who delivered the opinion in Mandeville vs. Welch, supra, would seem to have expressed a somewhat different view in his admirable work on Equity Jurisprudence (2 Sto. Eq. Jur., § 1044); but it will perhaps be found, on close examination of the authorities cited in the margin in support of the text, that they scarcely give sanction, in all its broadness, to the idea that a creditor, in ruthless disregard of the wishes or interests of his debtor, may divide and assign the debt into as numerous portions as there are dollars in the indebtedness, and yet successfully appeal to a court of conscience to countenance and enforce such oppressive and inequitable transfers. For if you once grant the premise that a creditor, without the consent of his debtor, may split and assign the debt into two portions, you thereby pave the way for the inevitable corollary that no bounds can be fixed or limits assigned, in this regard, to the creditor's gracious option. The mind of every just...

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