Switzer v. Noffsinger

• Decision Date: 11 November 1886
• Citation: 82 Va. 518
• Parties: SWITZER ET ALS v. NOFFSINGER ET AL.
• Court: Virginia Supreme Court

82 Va. 518

SWITZER ET ALS v. NOFFSINGER ET AL.

Supreme Court of Appeals of Virginia.

November 11, 1886

Appeal from decree of circuit court of Botetourt county, rendered November 2, 1884, in the chancery cause wherein Samuel Noffsinger was complainant, and Samuel Burger, administrator of Thomas Switzer and of Jonathan Switzer and others, were defendants. The circuit court decreed that the said Burger as such administrator, and Ellen, Rufus, Climer, Vara, and Virginia Switzer, widow and heirs of Jonathan Switzer deceased, pay the complainant $542.20, with interest and costs. From this decree the said widow and heirs obtained an appeal to this court. Opinion states the case.

Argued at Staunton. Decided at Richmond.

Glasgow & Glasgow, for the appellants.

J H. H. Figgat, for the appellee.

OPINION

LEWIS, P.

The case is as follows: On the 15th of June, 1850, William A. Gilliam, as principal, and Thomas Switzer, as surety, executed their bond, payable on demand, to Elizabeth Deisher, for the sum of four hundred dollars. Afterwards the said Elizabeth Deisher died; whereupon the bond, which remained unpaid, became the property of her husband, Peter Deisher, as her sole distributee. The latter was, on the 22d of April, 1872, indebted to the appellee, Samuel Noffsinger, in a sum exceeding seven hundred dollars, and in consideration thereof he, on the last mentioned day, gave an order in writing on Samuel Burger, administrator of Thomas Switzer, who in the meantime had died, payable to Noffsinger for seven hundred and eighty-two dollars and forty-seven cents, being " amount of balance due on Gilliam and Switzer's bond" aforesaid. Burger declined to accept the order in writing, but nevertheless made several payments on account thereof, as follows: $150 on the 13th of October, 1873; $96.58 on the 20th of July, 1876; $50 on the 21st of June, 1876; $244.66 on the 23d of July, 1877; and $50 on the 11th of October, 1880.

Thomas Switzer died intestate, leaving as his sole distributee and heir-at-law his son, Jonathan Switzer. His real estate consisted of a tract of land situate in Botetourt county, which passed, at his death, to the said Jonathan. The latter died in 1865, leaving a will by which he devised the land for the benefit of his wife and children, who are the appellants here.

Prior to the institution of the present suit, Gilliam, the principal debtor, died, and his estate was settled in a chancery suit, in the circuit court of Botetourt county, styled Gilliam's administrator against Payne and others. In that suit a small dividend was paid on account of the above mentioned bond, which the bill in the present case alleged was all that could be realized on the debt from Gilliam's estate.

The present suit was commenced in September, 1883, by the said Noffsinger to obtain payment of the balance due on the said bond; and the defendants to the bill were the said Samuel Burger, administrator of Thomas Switzer, deceased, the same Burger as administrator with the will annexed of Jonathan Switzer, deceased, and the widow and other devisees of Jonathan Switzer, deceased, two of whom were infants.

The bill prayed that the administrator be required to render an account of his administration of the estates of Thomas and Jonathan Switzer, respectively, and that a decree be entered directing payment of the debt " by the parties from whom it is due," and for general relief.

The defendants demurred to the bill, and also pleaded the statute of limitations. The demurrer and plea, however, were both overruled, and it was further decreed that the plaintiff " recover of the defendant, Samuel Burger, administrator with the will annexed of Jonathan Switzer, deceased, and administrator of Thomas Switzer, deceased, and of Ellen Switzer, Rufus Switzer, Climer Switzer, Vara Switzer, and Virginia Switzer, widow and heirs of Jonathan Switzer, deceased, to be paid out of the estate of the decedents, the sum of $542.60 with interest" and costs.

From this decree the widow and heirs of Jonathan Switzer, deceased, obtained an appeal.

Of the numerous assignments of error we will consider one only, namely, that relating to the action of the court in overruling the plea of statute of limitations.

There is no doubt that the written order of the 22d of April, 1872, was a valid equitable assignment of the debt due by Thomas Switzer's estate to Peter Deisher, evidenced by the joint bond of Gilliam and Switzer, and, although not formally accepted by the administrator, upon whom it was drawn, was enforceable in equity at the suit of the assignee, Noffsinger. No particular form is necessary to constitute an equitable assignment of a debt or chose in action. An order for valuable consideration which absolutely appropriates a fund is a good equitable assignment of the fund, though without the drawee's acceptance, written or verbal, no action at law can be maintained by the assignee against him. But to acquire a perfect title to the fund it is essential that notice of the assignment be given to the debtor; for, until notice, the assignment is subject to all the equities of the debtor against the assignor. And the assignment of a secured debt carries with it the security; and so it has been held that the assignment of a judgment includes an assignment of a bond given to secure its payment. Spain v. Hamilton, 1 Wall. 604; Christmas v. Russell, 14 Id. 69; Brooke v. Hatch 6 Leigh 534; Spofford v. Kirk, 97 U.S. 484; Shen. Valley Railroad Co. v. Miller, 80 Va. 821; 2 Story's Eq., sections 1044, 1047.

It is clear, however, that the debt assigned in the present case, being of a strictly legal nature, is as much subject to the operation of the statute of limitations in a court of equity as in a court of law. For, in such cases, the statute virtually includes courts of equity. At all events, the bar of the statute is applied, if not in obedience, at least in analogy, to the statutory enactment. Rowe v. Bentley, 29 Gratt. 756; Cole v. Ballard, 78 Va. 139; Hutcheson v. Grubbs, 80 Va. 251; 1 Bart. Ch. Pr., page 81.

The question, then, is whether the demand asserted in the bill is barred by the statute; and we are of opinion that it is.

The bond was executed on the 15th of June, 1850, and is payable...