Clarke v. Hog em an.

Decision Date07 September 1878
Citation13 W.Va. 718
PartiesClarke v. Hog em an.
CourtWest Virginia Supreme Court
1. One of several partners may assign a chose in action, due the


2. A note or draft is in the hands of an attorney for collection; the

note or draft may be assigned by the party entitled thereto by writing an assignment of " the within claim" on the back of the attorney's receipt.

3. An assignee of a note or draft does not acquire the legal titleto the debt, but an equitable right, which by virtue of the statute he may assert at law in his own name, or in that of the original payee, for his benefit; and it is not necessary, that the record should show, that the suit is for the benefit of the assignee.

4. The assignor of a judgment, or the claim on which it is founded,

upon which judgment was recovered, has no control over it, nor of an execution issued thereon, taken out by the assignee.

5. When a valid assignment is once made, the assignor has no further

interest in the claim; and of course no subsequent assignment of the judgment, recovered on such claim, can give any right to such subsequent assignee.

6. It matters not, that the subsequent assignee had no notice of the

prior assignment; for neither can have anything more by virtue of the assignment than an equitable title to the claim; and the maxim, qui prior est tempore potior est jure applies.

7. One of twro assignees claiming the same judgment cannot plead the

statute of limitations as against the other.

Appeal from, and supersedeas to, a decree of the circuit court of Kanawha county, rendered on the 1st day of December, 1876/in a cause in chancery in said court then pending, in which William S. Clarke was plaintiff," and William H. Hogeman was defendant, allowed on the petition of said Clarke.

Hon. Joseph'Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

At a circuit court, held for Kanawha county, on the 24th day of November, 1875, in the chancery case of Hyman, Moses & Co. v. Allen M. Smith et al., W. S. Clarke was granted leave to file his petition, in which he alleged, that on the 9th day of January, 1857, L. M. Wolcott, one of the firm of Wolcott & Everett, for value received assigned to William C. Williams the receipt to them, and the claim therein described, of #Brown & Summers, attorneys, for a certain claim oi theirs against John N. Clarkson, Anderson Rock and Allen M. Smithy one of the defendants in the suit, in which petition was filed; and the said Williams had assigned the receipt and claim to Bluford B. Burks, and said Burks to the petitioner. That at the February term, 1858, of the county court of Kanawha county, said attorneys, Brown September, 1857, and $8.19 costs, in the name of Wolcott & Everett, against the said Clarkson, Rock & Smith, for the benefit of the petitioner.

That in 1861, by a letter dated May 29th, signed by Wolcott & Everett by their firm name, said firm refused to pay the costs of said judgment, stating, that they had assigned said claim, before judgment was obtained, and disclaimed any interest whatever in said judgment, or suit; that execution issued upon said judgment March lOth 1858, and was levied on property, and a forth-coming bond taken and forfeited; that at a subsequent term of the county court judgment was had for benefit of peti~ tioner on said forfeited forth-coming bond, against the original defendant and W. A. McMullan for $800.00 and costs, to be discharged by the payment of $401.87, with interest, &c. Execution was issued on said judgment, and returned "no property found." Copies of the judgments, &c, in the record of the case in the county court, including the declaration, are in the record, also the receipt of Brown & Summers and assignments, and the letters of Wolcott & Everett. That Wolcott & Everett, for the benefit of petitioner, acquired a lien on all the real estate of the defendant, Smith, and that he is in equity entitled to be substituted to the place of said firm, and have the amount of said lien paid directly to him.

That there have been two interlocutory decrees rendered in said suit of Hyman, Moses & Co. v. Smith et al; that the commissioner, to whom the case was referred to audit the liens, has done so; and that no part of said debt had been paid to petitioner, or any person, entitled thereto; that said lien was reported, by said commissioner, to be the first lien on the property of the said Smith. That on the 11th of November, 1869, there was a decree confirming said report, and ordering, that the claims, so reported, be paid in six months, otherwise said real estate should be sold to pay the same; that neither the claim of petitioner nor any other of the said claims, were paid, but the said real estate has been sold pursuant to said decree; and that there is now in the hands of special commissioners, Knight & Hogeman, as shown by their report in said cause, sufficient funds from said sale, after paying off all costs, to satisfy petitioner's claim, which is the first lien on said property.

Petitioner is informed, that W. H. Hogeman claims some interest in said judgment by virtue of an assignment, made by said Wolcott & Everett, subsequent to the assignment to petitioner; and that he has caused execution to be issued on said judgment in 1870, and has collected thereon the sum of $94.00, which is still in the hands of said Hogeman, and belongs to petitioner.

The prayer of the petitioner is, that Hogeman and the defendants to said suit of Hyman, Moses & Co., and the said Wolcott & Everett be made defendants to the petition, and that said Hogeman may be required to pay to petitioner any money, he has collected on said judgment; and that petitioner be substituted to the lien of said Wolcott & Everett against the lands of said Smith. and for general relief.

The said Hogeman filed his answer to the said petition, in which he set up a claim to the judgments, referred to in the petition, by virtue of an assignment made to him by W. S. Laidley, attorney in fact for the firm of Wolcott & Everett. He avers, he paid a large price for said judgments. He admits, that he collected on said judgments by execution, after the assignment to him thereof, the sum of $94.00. He further says, that the records of the court do not show any assignment to the petitioner, or any intimation thereof in anyway. The defendant Hogeman denies, that the assignment to the petitioner is valid, that it was not by the firm of Wolcott & Everett. He avers, he never had any notice of said pretended assignment to petitioner; that petitioner has been guilty of great laches in not having his interest thereon noted in the judgments themselves, which were not recorded, until such pretended assignments were made; nor was there any such notice on the execution book, or in any other way, so that kaowledge of his claims and pretentions might have reached those who were interesting themselves in the judgments; that in view of this state of facts it would be unjust and oppressive, to deprive respondent of said j udgments. Respondent relies on the statute ot limitations, and claims, that petitioner has allowed too much time to elapse, viz, seventeen years, without in any way making known his claim, to be entitled to any relief.

To sustain his claim, the petitioner exhibits the record of the judgment in the county court, and the following letter and agreements:

"Kanawha, C. H., Va., Oct. 1857. "Messrs. Wolcott & Everett,


"Yours of the 28th, enclosing draft drawn by J. N. Clarkson, in favor of Rock & Smith, of date August 19th 1857, came to hand by last mail, and will meet prompt attention. In the first instance, it will be necessary for you to send us the Christian names of the partners, as well dormant, as otherwise, of your company or firm; also those of the firm of Rock & Smith. As our promptness will depend on yours in answering this, we hope to hear from you at your earliest convenience." Yours to command,

" Brown & Summers.

" P. S. We have found out the names of Rock & Smith at this instant. Yours."

The above letter has the following endorsement on it:

"January 9th, 1858.

"For value received, I assign the within claim to William C. Williams, without recourse. This claim being the draft of John Clarkston, given me by Wm. Williams, as part payment towards my wharf boat of $350.00.

" M. L. Wolcott." I assign the above claim to Bluford Burks, without recourse.

" W. C. Williams. "I assign the within claim to William S. Clarke, without recourse.

" B. B. Burks." The following is a letter afterwards sent to J. H. Brown by Wolcott & Everett:

Guyandotte, May 29th, 1861." Jas. H. Brown, Esq.:

" SIR: Enclosed find Clarke's claim, which is unjust as against us, as the note sued on was not ours. We once had it in our possession, but sold it without any recourse ~ upon us. If the party, we sold it to, sued on it, it was none of our* business. We never sued on it, nor do we think our name is upon the note, or in any way connected with the transaction. Please attend to this little matter for us, and much oblige,

" Your friends,

" Wolcott & Everett." The deposition of Jas. 11. Brown was taken; and he testifies, that " after examination of the paper and the file of papers, in which the judgment was rendered, I am satisfied, the note, referred to in exhibit "B," (the letter in reference to the claim) is the same as the claim, referred to in exhibit "A," (the receipt for the claim and the assignment thereon) and the one, on which the judgment was rendered. It is the only claim, I ever recollect to have had from Wolcott & Everett, that is, I and W. S. Summers, when we were in partnership. I don't think I ever had any other after or before our said partnership."

The assignment, under which Mr. Hogeman claims the judgment, and which is exhibited with his answer, is as follows:

u For value received, we hereby release, transfer and assign...

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