Armour Fertilizer Works v. Newbern

Connor, J. On 6 January, 1932, supplemental proceedings in execution, as authorized by statute, C. S., 711, et seq., were instituted by the plaintiff in this action for the purpose of procuring an order of the court that the indebtedness of W. A. Brock to the defendant H. D. Newbern, then existing, if any, be applied as a payment on the judgment which the plaintiff had theretofore recovered against the defendant, and which had not been paid or satisfied. At that date an action which had been instituted in the Superior Court of Currituck County by the defendant H. D. Newbern against W. A. Brock was pending in said court on the report of a referee to whom the action had been referred by consent for trial. On the facts found by him and set out in his report, the referee recommended that judgment be rendered by the court that H. D. Newbern, the plaintiff therein, recover of the defendant W. A. Brock the sum of *15 $3,195.24, with interest and costs. On 12 May, 1932, by consent of the parties to said action, exceptions theretofore filed by the plaintiff therein to the referee’s report were withdrawn, and judgment was rendered in said action in accordance with the report of the referee. This judgment was docketed in the office of the clerk of the Superior Court of Currituck County on 21 May, 1932. At the date of the institution of the action entitled “H. D. Newbern v. W. A. Brock” in the Superior Court of Currituck County, the plaintiff therein agreed to assign to P. "W. McMullan, his counsel in said action, as compensation for his professional services, one-fourth (25%) of the recovery in said action, and the further sum of three hundred dollars ($300.00), to be deducted from the remaining three-fourths (75%) of the recovery, in payment of professional services theretofore rendered to him by the said P. W. McMullan in other matters. Thereafter, while the action was pending for trial before the referee, the plaintiff executed and delivered to the said P. W. McMullan the paper writing dated 25 May, 1931, and subsequently, after judgment had been rendered in the action on the report of the referee, executed and delivered to the said P. W. McMullan the paper writing dated 20 June, 1932. Since the institution of the supplemental proceedings in execution in this action, the sums due to P. W. McMullan under the agreements, both oral and written, have been paid to him and have been duly credited as payments on the judgment in favor of H. D. Newbern and against W. A. Brock. For that reason, the intervener, P. W. McMullan, has no interest in the matters involved in this appeal. Some time during the month of December, 1927, prior to the commencement of this action, while the action instituted by him in the Superior Court of Currituck County against ~W. A. Brock was pending before the referee for trial, H. D. Newbern, the plaintiff therein, in consideration of a loan or of loans of money made to him by S. C. New-bern, and as security for the payment of said money, agreed to assign to the said S. C. Newbern all sums recovered by him in said action, after the payment to P."W. McMullan of the amounts due him out of said sums by virtue of the agreement theretofore entered into by and between the plaintiff and the said P. W. McMullan. Thereafter, the said II. D. Newbern executed and delivered to P. W. McMullan the paper writings dated 25 May, 1931, and 20 June, 1932. Both said paper writings were delivered to and received by the said P. "W". McMullan for the benefit of himself and of the said S. O. Newbern. . Conceding that the paper writing dated 20 June, 1932, having been executed and delivered subsequent to the institution of the supplementary proceedings in execution in this action, is not sufficient alone to sustain the contention of the intervener, S. O. Newbern, that he is the owner, *16 as assignee, of the judgment docketed in the office of the clerk of the Superior Court of Currituck County on 21 May, 1932, as against the plaintiff in this action, the question of law presented by this appeal is whether the oral agreement entered into by and between H. D. Newbern and S. C. Newbern in December, 1927, and the paper writing executed by the said H. D. Newbern and delivered by him to P. W. McMullan for the benefit of the said S. 0. Newbern, on 25 May, 1931, were sufficient for that purpose. The validity of the judgment rendered by the Superior Court of Currituck County in the action entitled “H. D. Newbern v. W. A. Brock” cannot be challenged by the plaintiff in this action on the ground that if the interveners in this action, P. W. McMullan and S. C. New-bern, became the assignees of the causes of action on which the judgment was rendered, by virtue of the agreements, both oral and written, as found by the court, they were necessary parties to the action, after they became such assignees. As assignees of the causes of action alleged in the complaint, they were proper but not necessary parties to the action. The right of H. D. Newbern, who bad instituted the action in bis own behalf, to prosecute the same, after the assignment, in behalf of bis assignees, in the absence of objection by the defendant in the action, was not affected by the assignment. See Chatham v. Realty Co., 180 N. C., 500, 105 S. E., 329, and Valentine v. Holloman, 63 N. C., 476. In the instant ease, by virtue of the oral agreement entered into by and between the defendant H. D. Newbern and the intervener S. C. Newbern, during the month of December, 1927, and of the paper writing executed by the defendant II. D. Newbern on 25 May, 1931, the inter-vener S. C. Newbern became the equitable owner at least of all sums which the said H. D. Newbern should thereafter recover of W. A. Brock in the action then pending in the Superior Court of Currituck, subject to the rights of P. W. McMullan under his agreement with the defendant H. D. Newbern and under the paper writing dated 25 May, 1931. When the judgment was recovered in said action on 12 May, 1932, the said S. C. Newbern became the owner of said judgment, subject to the rights of P. W. McMullan, and was entitled to a legal assignment of the same. In recognition of this right, the defendant H. D. Newbern, who then bad no interest, legal or equitable, in said judgment, executed the paper writing dated 20 June, 1932. In Godwin v. Bank, 145 N. C., 320, 59 S. E., 154, the following statement of the principle applicable to the facts in this case is quoted with approval from the opinion of Story, J., in Mitchell v. Winslow, 2 Story, 630: “It seems to me a clear result of all the authorities that wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or personal property, whether then owned by the *17 assignor or contractor or not, or if personal property, whether it is in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against the latter, and all persons asserting a claim thereto under him, either voluntary or with notice or in bankruptcy.” The judgment in this action is supported by this principle, and is, accordingly, Affirmed. DeviN, J., dissents.