Parker v. Planters Bank of Americus

Lumpkin, J. (After stating the foregoing facts.) 1. At common law neither choses in action generally (not including negotiable instruments in that expression) nor judgments could be so assigned as to vest the legal title in the assignee and authorize him to enforce them in his own name. He 'acquired an equitable interest, but the enforcement of the right had to be in the name of the assignor. By the Civil Code (1910), § 3653, it is provided that “All choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable securities, subject to the equities existing between the assignor and debtor at the time of the assignment, rand until notice of the assignment is given to the person liable.” By section 4274 it is declared that all bonds, specialties, or other contracts in writing for the payment of money for any article of property, and [162] all judgments and executions from any court in this State, are-negotiable by indorsement, or written assignment, in the same manner as Mils of exchange and promissory 'notes; and that no indorsement or assignment need be under seal. By section 5969, it is further declared that “Any plaintiff or transferee may bona fide, and-for a valuable consideration, transfer any judgment or execution to a third person, and in all cases the transferee of any judgment or execution shall have the same rights, and be liable to the same equities, and subject to the same defenses as the original plaintiff in judgment was.” It will be observed that the language in regard to the assignment of choses in action arising upon contract and the transfer of judgments is not identical. In regard to the former it is provided that the assignee shall take subject to the equities existing between the assignor and debtor at the time of the assignment, “and until notice of the assignment is given to the person liable.” In the section dealing with transfers of judgments or executions these quoted words are not used, but it is provided that the transferee shall have the same rights and be liable to the same equities and subject to the same defenses “as the original plaintiff in judgment was.” The equities protected, irrespective of notice, were equities between the parties to the judgment, and not those in favor of strangers to the judgment, as to whose names and interest the record may be silent. Western National Bank v. Maverick National Bank, 90 Ga. 339, 344, 346 (16 S. E. 942, 35 Am. St. R. 210). In Robinson v. Bchly, 6 Ga. 515, it is held, that where an execution has been levied on property which is claimed by a third person, and the claimant seeks to show that the judgment has been satisfied, he must prove that the payment has been made to the plaintiff in fi. fa., or the person holding the legal control under him. If he had notice of the transfer from the plaintiff in fi. fa., payment to the latter would not suffice. In some jurisdictions it is held that notice to the defendant in fi. fa. of a transfer by the original plaintiff is necessary to complete the right of the transferee and prevent payment to the original plaintiff from being sufficient; but this question is not here involved. Payment was not made to the original plaintiff in fi. fa., who also held the title to the execution by retransfer, but was made to a person to whom it was transferred and who had retransferred it before payment was made. It does not appear that this person was authorized [163] to make the collection, or that the payments found their way' to the owner; nor does it appear that the fi. fa. was in 'the custody or possession of such person when the payment was made. Thus the defendant made payments, not to the holder or owner of the execution, but to one who had for a very brief period been the transferee thereof before he made a retransfer of it. In making such payments the defendant in execution took the risk of the authority of the person to whom he made them to receive them. That the defendant in execution knew of the proposed purchase of the execution by the claimant, and was informed that a transfer had been made to such claimant, but did not know of the retransfer to the original plaintiff as security, would not alone protect him. There was no plea or evidence setting up any estoppel on the part of the holder of the execution. The charge of the court was in substantial accord with what has been said above, and was not erroneous. 2. The evidence authorized the verdict, and there was no error in overruling the motion for a new trial. Judgment affirmed. All the Justices concur.