Frazier v. Robert Moore's Adm'r.

• Decision Date: 01 January 1854
• Citation: 11 Tex. 755
• Parties: W. W. FRAZIER v. ROBERT MOORE'S ADM'R.
• Court: Texas Supreme Court

11 Tex. 755

W. W. FRAZIER

v.ROBERT MOORE'S ADM'R.

Supreme Court of Texas.

1854.

Where a law of the State of Mississippi provided that where there was a return of no property, and the plaintiff failed to pay the costs, the Clerk, or Sheriff, etc., might, by motion, obtain an order without further notice to the plaintiff, for the sale of the judgment (including the cause of action), to pay the costs, it was held that such sale operated a valid transfer of the judgment, which could be asserted in the Courts of this State.

Where the defendant claimed by Sheriff's sale, and introduced the judgment, and an execution which contained a return that the property was sold on that day, dated the 10th November, and then offered the Sheriff's deed, which bore date the 3d of November, it was held that the deed was properly admitted, the jury being at liberty to infer a mistake in the date.

Where a statute provided that certain property, which was authorized to be sold in a summary manner, by execution, might be redeemed within a certain time, by the payment or the tender of the purchase money, and ten per cent. to the purchaser, it was held that a tender to the purchaser was sufficient, although he had assigned to another, whose name the purchaser gave to the person making the tender, at the time when he made it.

Where a tender to an assignor, after the assignment, is binding on the assignee, the certificate of the former, to the fact of the tender, which certificate purports to be made at the same time when the tender is made, is admissible against the assignee.

Where the subscribing witnesses reside beyond the jurisdiction of the Court, it is competent to prove their handwriting.

Where a promissory note was indorsed “to the Cashier of the Bank of the United States, or to W. W. Frazier, their agent, or order,” it was said, It is clear that the plaintiff (Frazier) is the only person who could transfer the legal title to the note in this case, by his indorsement; and he is the only person who could maintain an action upon it in a common Law Court. His right to maintain an action here, is not affected by the fact that the Court being a Court of Equity as well as Law, the beneficiary might have maintained the action in his own name.

The recovery of judgment in one of the United States was no bar to a suit on the same cause of action, commenced before Annexation, although the defendant was cited and answer filed after that event.

Quere? Whether this case decides that where a note is payable to either of two persons, a recovery by one, without satisfaction, in a foreign country, is no bar to a suit here by the other.

Appeal from Brazoria. Suit brought December 17th, 1845 (citation issued January 13th, 1846; alias executed October 7th), by the appellant against Robert Moore, surviving partner of the firm of D. G. & R. Moore, on the following instrument:

+-----------------------------------------+
                ¦“$2,378 96.¦YAZOO CITY, April 21st, 1841.¦
                +-----------------------------------------+
                

On the first day of January next after date, we or either of us promise to pay to the Merchants' Bank, of New Orleans, two thousand three hundred and seventy-eight 96-100 dollars. Value received. Negotiable and payable at the Commercial Bank of Manchester, in Yazoo City, Mississippi.

D. G. & R. MOORE.”

Indorsed, “Pay the within-mentioned note to the Cashier of the Bank of the United States, Philadelphia, or to W. W. Frazier, their agent or order, without recourse on the Merchants' Bank, of New Orleans.

ROBERT COPELAND, Cash'r.”

The above instrument, together with the charter of the Merchants' Bank of New Orleans, proof of user, and that Robert Copeland was reputed to be the Cashier of said Bank, constituted the plaintiff's case in the first instance.

The defense was that on the 28th of November, 1844, Thomas S. Taylor, Cashier of the Bank of the United States, who sued for the use of Alexander Symington, recovered a judgment on said instrument against this defendant, for the full amount thereof, in the Circuit Court of the State of Mississippi, in Yazoo county. There was an execution issued on said judgment, returned no property. On the 12th May, 1845, the Clerk of Yazoo Circuit Court obtained an order for the sale of said judgment for $7.12, clerk's fees due thereon. Execution issued thereon, and the judgment was sold to William Battaile for the sum of sixteen dollars, after due publication of time and place of sale, in the Yazoo Banner. Then followed Battaile's affidavit before the Clerk of said Court, that he had purchased said judgment for his own use and benefit, and not in trust for the use and benefit of any other person. Here the defendant introduced in evidence the statute of Mississippi, which provided for the sale of judgments to pay costs, after a return of nulla bona, and a failure of the plaintiff to pay the costs. It authorized defendants to purchase and thereby extinguish the judgment, and contained the provision, “that the plaintiff, whose judgment may have been sold, shall have two years to redeem such judgment; and the payment or tender by him to the purchaser of said judgment, of the amount of the purchase money, with ten per cent., shall revive the said judgment in his favor, as though the same had never been sold.” Said law also contained a prohibition against the withdrawal of the original cause of action, in cases where the judgments were sold under it; and transferred the same to the purchaser of the judgment. The defendant then proved the Sheriff's transfer to Battaile, and the transfer by Battaile to the defendant, the latter dated December 14th, 1845. The Sheriff's sale purported to be made on the 10th of November, 1845, whereas the deed from the Sheriff was dated November 3d, 1845.

The plaintiff offered to prove the handwriting of William Battaile, to a certificate, and offered the certificate, that on that day, the 20th of August, 1847, the agents of the plaintiff in said case, tendered to him, in redemption of said judgment, the sixteen dollars paid by him, and ten per cent. per annum interest thereon, which he refused to receive because he had received satisfaction from the defendant. To the certificate there were two witnesses, whose handwriting the plaintiff also offered to prove; and he also offered to prove that all of said persons resided in Mississippi.

The plaintiff also saved an exception to the admissibility of the Sheriff's deed dated November 3d, after the defendant had proved the sale to have been on the 10th.

The plaintiff asked the Court to charge the jury that the order for the sale of the judgment was void because it did not purport to be made after notice to the plaintiff. (Notice was not required by the law.) Verdict and judgment for defendant. Plaintiff appealed.

Allen & Hale, for appellant.

R. Hughes, for appellee.

WHEELER, J.

The principal defense relied on was, that by virtue of the sale of the judgment under the Mississippi statute, and its transfer, by the purchaser, to the...