Benson v. Gotheimer

Hall, Justice. The plaintiff in fi.fa. became the assignee of a landlord’s lien created by a special contract in writing, and given by [643] the defendant for supplies, money, etc., agreed to be furnished to him as tenant. On the day this lien was given, it was regularly assigned in writing to the plaintiff, and when due, it was foreclosed, and the fi.fa. issued on this judgment was levied on a portion of the crop grown on the land rented to the defendant; the crop thus levied on was claimed by Benson, who purchased the same from the tenant, with full notice, however, of the landlord’s special liens in writing, both for rent and supplies, and also of their assignment to plaintiff. By consent, the property levied on was sold, and the sum arising from the sale was substituted for it, and considered as standing in its place. .The questions of law and fact involved in the issues made by the levy and claim were, by agreement, decided by the presiding judge without a jury. The judgment was for the plaintiff, and claimant excepted and brought the case here for review. 1. The claimant insisted that the lien held by plaintiff grew out of and was part of a usurious contract, and was utterly void; that it was a mere shift to evade the statute against usury ; that the defendant was not, in fact, the tenant of Mrs. Norman, the assignor of the lien to- plaintiff, but that he held the premises under a contract of purchase-from her, and she being unwilling to take eight per cent, for her money, resorted to this device that she- might exact twelve and a half per cent for the use of the same, a-nd; took the rent notes in question for that amount, claiming: under this agreement to be the landlord, instead of the-vendor of the defendant; that claimant took from himi an assignment of the contract for the purchase-of the-land, at the same time he bought the crop then growing • thereon. Even if the claimant could have availed' himself of the defence that the plaintiff might have setup against Mrs. Norman on account of the usury in the transaction respecting the sale and purchase of the land, he is not in a situation to do so, because the contract for this rent was not included in the assignment in dispute; that [644] for the supplies furnished, is alone in issue. Whether this transaction respecting the rent note and defining the relation of the original parties to each other was usurious, is a question for the jury to pass upon, and we think it quite evident that, if the defendant in execution assigned only his place in the contract to the claimant, and p.aid him a valuable consideration to assume his obligation, the claimant could not set up the defence of usury against the plaintiff’s vendor. Hammond et al. vs. Buys, 1 Kelly, 416. The assignment did not carry with it the right to make a defence, on which the assignor refused to insist; besides, if the assignee ha'd desired to carry on this litigation with Mrs. Norman, he could not have purchased the right to do so; such an agreement would have been champertous, and have amounted to maintenance and the buying of a lawsuit. Worsham et al. vs. Brown, 4 Ga., 284, is directly upon this point; it is there said (p. 286) that the as-, signeeof a fi. fa. could purchase only the execution and judgment on which it issued, and the lien which by law it had on the property of defendant. The plaintiff could not convey to him the right to sue for a fraud, either at law or in equity. “Much less does it pass as an incident to the assignment. The very attempt to convey this right would constitute, in spirit, that offense against public justice, forbidden by 32 Hen. VIII., which has beenadopted in this state. It would be selling a lawsuit.” 2. Where the landlord reserves in writing a special lien for supplies to be furnished the tenant, he can, under the act of 1875, p. 20, Code, §1978, sub-sec. 2, assign the same in writing, and when so assigned, it may be enforced by the assignee, just as it could have been by the landlord. There is nothing in the objection that the lien was transferred on the day it was made, and before any supplies had been furnished by the landlord. The very object of the assignment is ,to enable the landlord to comply with this part of the contract. Besides, so far as respects the remedy [645] and the right to enforce the lien, the assignee, by reason of the written transfer, becomes quoad hoe to all intents, and purposes the landlord. As two could not hold sepa, rately and adversely a lien against one and the same tenant, when the assignment was completed, the assignor ceased to be landlord over the matter assigned. It is needless to consider other questions made in the record, since those already passed upon show that the court could have come to no other conclusion than he did. The result reached was inevitable. Judgment affirmed.