First N. Bank v. Ladd

Opinion, Mr. Justice Gbeeb : By the terms of the written agreement between Manville and Fox dated November 25,1884, the proceeds of the goods of Hicks sold by the sheriff were to be divided between them in the proportion of $4,650 to Manville and $1,000 to Fox. Under the last clause of the same agreement it was stipulated that as to all goods which they might buy at the sale they should be sold thereafter at private sale and the money resulting should be divided in the same proportions. Fox’s share of all these moneys was due to him by virtue of his own judgments and executions against Hicks. In addition to these he had another claim which was against Manville, a note for $1,000, and secured by a judgment. As collateral security for that he took an assignment from Manville of Manville’s judgment against Hicks for $4,650. This assignment also was made on the same 25th of November, 1884. Whatever right, therefore, Manville had or could have to the money arising from the sheriff’s sale, or from the subsequent sale of goods purchased at that sale, was by the said assignment pledged to Fox as collateral to the $1,000 note. Manville was undoubtedly bound by this assignment and agreement as to the distribution, and of course his attaching creditor was bound to the same extent. We are quite unable to discover any reason why Fox cannot avail himself of the moneys in his hands, whether coming from the sheriff’s sale directly or from the subsequent sale of goods bought at that sale, for the protection of his $1,000 note. Those moneys all grew out of [193] the proceedings on the judgment for $4,650 which was specifically assigned, and whatever advantage accrued under that judgment passed by the assignment. Fox says in his answers the assignment was made as collateral security for the note of $1,000, and there is nothing to contradict him on that subject. The assignment itself is printed and it is absolute in its form and passed all of Man ville’s title. But as Fox only claimed enough to pay his note, his demand would be satisfied by the application * of so much of the proceeds in his hands as would pay his note, and this is precisely the way in which his account of the proceeds is made up. It is not at all necessary that the specific purpose to which the proceeds derived from the $4,650 judgment were to be applied should be set out at length in the assignment, if in point of fact there was a fair and honest consideration for the assignment. This has been expressly alleged by Fox in his answers, and as he is not contradicted his statement on that subject is entitled to full credit. As to the Lyman claim, it was specially charged upon the $4,650 judgment by the express terms of the assignment to Fox; that assignment was made subject to the previous assignment of $500 of the same judgment to Mrs. Lyman on November 17,1884. The Lyman assignment on that day was also given in evidence and the effect of the two assignments was to make Fox a trustee for Mrs. Lyman to the extent of $500, in advance of any benefits which he could take out of the proceeds realized by him. We can see no necessity for a separate issue in the Lyman assignment. It was set up both in Fox’s answers and in her own petition. No issue was asked for and as the truth of the facts could just as well be tried on the answers of the garnishee, there was no occasion for any. Judgment affirmed.