Ege v. Watts

The opinion of the court was delivered, July 3d 1867, by Agnew, J. — The question in the court below was whether Mr. Watts was bound to refund to the estate of Mary Ege, the money received by him upon the Cornman mortgage. This mortgage had been assigned by Mrs. Ege to Mr. Watts, as collateral security for the payment of certain claims he had for money advanced to her. There was no direct payment of these claims, and the question was whether a subsequent assignment by Mrs. Ege to Mr. Watts of a judgment against Peter E. Ege, and the receipt of Mr. Watts of the money upon it, operated as a satisfaction of the claims secured by the Cornman mortgage. The Peter E. Ege judgment was assigned to Mr. Watts upon three severally recited considerations : 1st. On account of the share of Mrs. Watts in the estate of her father, of whose will Mrs. Ege was executrix and liable on a settled account to a large sum; 2d. On account of the shares of A. G. Ege and Charles N. Ege, of the same estate, which shares the assignment recites as being held and owned by Mr. Watts; 3d. On account of the personal indebtedness of Mrs. Ege to Mr. Watts for moneys lent and advanced. Erom a pencil memorandum in the handwriting of Mr. Watts, evidently made on the same day of Mrs. Ege’s assignment of the Peter F. Ege judgment, exhibiting her personal liabilities to Mr. Watts, and given in evidence by the plaintiff, we learn that she then owed Mr. Watts for moneys lent and advanced upwards of |12,000, including the [325] claims secured by the Cornman mortgage. At that time the shares of Mrs. Watts and A. G. and C. N. Ege in the estate of their father exceeded $95,000. The Peter F. Ege judgment on the day of the assignment was, with interest, only the sum of $15,360. The assignment of this judgment does not purport to be in payment of any of the claims, and no evidence was given of any appropriation made or to be made to any of them specifically, while altogether the claims exceeded the judgment many times. The pencil memorandum was not signed by Mr. Watts, and on its face discovered no intent to appropriate the judgment to any particular one of the three considerations stated in the assignment. As the case stood when Mr. Watts received payment of the Ege judgment in 1859, he had a right to apply it to any of the claims in his hands, or pro rata upon them; but he made no specific appropriation. But as his claims far exceeded the Ege judgment and the Cornman mortgage, equity would not compel him to apply any of the money to that part of his personal claim secured by the Cornman mortgage. He had a right therefore to receive the money upon the Cornman mortgage and retain it for the particular debt for which it was pledged. But it is alleged that after the passage of the Act of 1848, Mrs. Watts’s share in her father’s estate became vested in herself, and that Mr. Watts lost his marital right to reduce it to possession for his own use. This is an immaterial question as the case stands. By the very terms of the assignment Mr. Watts has the right to receive and apply the money upon this share, and it is immaterial whether he receives it for his or for her use. It is sufficient now that Mrs. Ege ’herself assigned the judgment upon account of Mrs. Watts’s share, whether she or he is the beneficial owner of it. Mr. Watts having a right to retain the Corn-man mortgage to pay his own claims secured by it, the court below was right in holding that the plaintiff could not recover. Judgment affirmed.