Brown v. Chambers

COLLIER, C. J. The act of 1822, authorizes an executor or administrator, who has not power by the will to sell real estate for the purpose of paying debts, or to make more equal distribution among the heirs, devisees or legatees, to file a petition in the orphans’ court of the county in which letters of administration, or letters testamentary have been granted.,. — 704 — setting forth that the estate of his testator or intestate is not sufficient for the payment of the just debts of such testator or intestate; or that the real estate of such testator or intestate cannot be equally, fairly and beneficially divided among the heirs or de-visees of such testator or intestate without a sale of the real estate, setting out and particularly describing in such petition the estate proposed to be sold, and the names of the heirs or devisees of the same — which are of age, and which are infants or femes covert. [Clay’s Dig. 224, § 16.] Under this statute, it has been decided that an equitable title could be sold by a decree of the orphans’ court, and the purchaser would stand in the same predicament in respect to the title, as the heirs did ; and that a mortgagor’s interest, under an order of that court, would confer upon the purchaser the right to redeem. [Doe, ex dem. Duval’s heirs, v. McLoskey, 1 Ala. Rep. N. S. 734 ; Evans’ adm’r v. Mathews, 8 Ala. Rep. 99.] It is insisted that these decisions authorized the proceedings and decree in the orphans’ court, for the sale of a moiety of the lands described in the bond, and that the commissioners appointed to execute the decree might with the subsequent sanction of the court, indorse the bond, and thus invest the purchaser with the right to prosecute not only equitable, but legal remedies on it. The citations certainly do not support this argument, and we think it cannot be maintained. Conceding that the contract evidenced by the bond, is consistent with the spirit and policy of the pre-emption laws, and the obligee performed every stipulation required of him, so as to have authorized him to enforce a specific performance in equity, and still it does not follow that the orphans’ court could invest the commissioners with authority to make such an assignment of the bond as would entitle the assignees to sue at law in their own names, and alledge as a breach the failure to convey a moiety of the lands to him. If the sale effected any thing, it was nothing more than to place the assignee, in respect to the lands in the same situation as the obligee stood ; and as the obligee would have been compelled to go into equity to perfect his title, the same remedy would have been appropriate for the purchaser of his interest. The decree, if conformable to law, directed the commissioners to sell the land — not the bond under which the obligee, in his — 705 — lifetime, and his heirs and administrators after his death, claimed aright in equity to a moiety. This is perfectly clear, not only from the section of the act cited, but from several sections which follow it. The fourth section enacts, that the “court shall not decree or order a sale of the real estate” described in the petition, where the allegations are denied ; unless satisfied by proof, &c.; and commissioners shall be appointed, in the order or decree, with directions to sell the estate, &c; By the sixth, it is provided, that upon the coming in of the report of the commissioners, the court shall render a final decree in the cause ; “ and if the terms of the sale shall have been complied with by the purchaser of the estate, the commissioners shall be directed, by such final decree, to convey the estate sold, to the purchaser.” Again : the seventh section declares that “whenever the court shall, upon a final hearing of the cause, decide that the estofe shall notbe sold, thejudge shall dismiss the petition,” &c. [Clay’s Dig. 225, § 19, 21, 22.J These several provision's show, that the court acts upon the “ real estate described in the petition, and formally conveys through the agency of commissioners, the title which the deceased had therein, and that commissioners cannot assign 'a penal bond which stipulates to make a title upon certain conditions, so as to authorize the assignee to sue on it at law. Such a power cannot be legitimately conferred ; and in fact the decree found in the record shows, that it was the •interest which the intestate died possessed of, in the lands described in the condition of the bond. The confirmation of •an assignment, if made by the court, as alledged, was coram non judice — it was something beyond and independent of the decree of a sale, and could have no legal effect. A bond to make a title, upon the payment of money, or the performance of some other duty, is, in no sense, a covenant running with the land, upon which the purchaser of the obligee’s interest in the land may maintain an action in his own name. Whether, in a case circumstanced as the present, it would be allowable for the purchaser to sue in the name of the administrator or heirs for his own use, is a question which we need not, now specially consider. However this may be, we have seen that the intestate had no such estate in the land as the orphans’ court could order to be sold, and that under the de — 706 — cree the commissioners could not assign the bond to the purchaser. We come now to consider whether the bond declared on, can be transferred by indorsement, so as to pass to the assignee a legal title therein. The act of 1812, “ concerning the assignment of bonds, notes, &c„ and for other purposes,” enacts, that “ All bonds, obligations, bills single, promissory notes, and all other writings for the payment of money, or any other thing, may be assigned by indorsement, whether the same be made payable to the order or assigns of the ob-ligee or payee or not; and the assignee may sue in his.own name, and maintain any action which the obligee or payee might have maintained thereon previous to assignment,” &c. [Clay’s Dig. 381, <§> 6.] The act of 1828, “ defining the liability of indorsers, and for other purposes,” after declaring that the remedy on foreign and inland bills of exchange, and promissory notes, payable in bank, shall be governed by the rules of the law merchant, as to days of grace, &c., provides, that “ all other contracts in writing, for the payment of money or property, or performance of any duty of whatever nature, shall be assignable as heretofore, and the assignee may maintain such suit thereon, as the obligee or payee could have done, whether it be debt, covenant, or assumpsit. [Clay’s Dig. 383, $ 11, 12.] It is well settled that bonds cannot be assigned at common law, so as to entitle the assignee to an action in his own name thereon. But courts of law will recognize the assignment of a bond, so as to refuse to give effect to a subsequent release of the,debt by the original obligee. The assignment, it has been held, amounts to a contract that the assignee shall receive the money to his own use, entitles him to sue in the assignor’s name, and is a sufficient consideration fora promise by the obligor to pay the assignee. [1 Bos. & P. Rep. 447; 2 Black. Rep. 1269; 1 Pick. Rep. 504; 1 Stew. & P. Rep. 60; 4 Rand. Rep. 266 ; 7 Conn. Rep. 399; 15 Mass. Rep. 485; 2 Greenl. Rep. 510; 2 Stew. Rep. 259; 2 Hals. Rep. 94; 3 G. & Johns. Rep. 214; 3 Hill’s Rep. 88; 5 Pet. Rep. 599.] The assignee of a bond takes it at his peril, and stands in the place of the obligee, so as to let in every defence which the obligor had against the obligee at the time of notice of — 707 — assignment. [1 Dall. Rep. 23, 444; 4 Rand. Rep. 266; 5 Binn. Rep. 232; 4 Serg. & R. Rep. 177; 9 Id. 141; 1 Lord Raym. 683.] By a statute of Virginia, passed in 1748, it is enacted that “ an action of debt may be maintained upon a note or writing, by which the person signing the same shall oblige himself to pay a sum of money or quantity of tobacco to another.” In 1795, an act of the same State provided that “assignments of all bonds, bills and promissory notes, and other writings obligatory whatsoever, shall be valid ; and an assignee of any such may thereupon maintain any action in his own name, which the original obligee or payee might have brought, but shall allow all such discounts, not only against himself, but against the assignor before notice of the assignment was given to the defendant.” [1 Rev. Code of Va. 484, § 4, 5.] In Henderson, et al. v. Hepburn, et al. 2 Call’s Rep. 232, it was said that the former act did not embrace a bond with a collateral condition ; that whenever a bond is made with a smaller specific sum mentioned in the defeasance, or the bond is single, so that judgment may be given for that sum with interest, and for damages to be ascertained by a jury; there it is not necessary to assign particular breaches, and the bond will be considered one for the payment of money within the meaning of the statute. But if the principal sum for which the judgment is to be rendered is unascertained, and the intervention of a jury is necessary to adjust the damages; or if a special assignment of breaches is requisite to inform the defendant for what cause the action is brought, then the bond does not come within the act, so as to entitle the assignee to sue in his own name. [See also Lewis v. Harwood, 6 Cranch’s Rep. 82; Craig v. Craig, 1 Call’s Rep. 483.] In Meredith v. Duval, 1 Munf. Rep. 76, it was held that an assignment made after the statute of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was dated before the act. Under the statute of Kentucky, which enacts that all bonds, bills and promissory notes, whether for money or property, shall be assignable, and the assignee may sue for the same, in the same manner the original obligee or payee could do, it has been decided that a bond with a condition for the — 708 — conveyance of land is assignable. [Conn v. Jones, Hard. R. 8; Sloan v. Griffith, Ib.] The question again arose in Newfong v. Wells, Id. 561, and the court said, that “ property is nomen generalissimum, including every visible subject of ownership ; and although, upon comparing the act of 1798 with that of 1796, some doubt remains whether the legislative intention in enacting that of 1798, extended beyond bonds for personal property, passing by delivery ; yet that the construction shall be settled, is of more importance than what it shall be. The construction given by the decision of Conn v. Jones, upon solemn argument, appears best adapted to the situation of our country, and will not be now disturbed.” But in Bowman v. Frowman, 2 Bibb’s Rep. 233, it was held that there was no rule in the construction of statutes, that will justify the extension of the Kentucky act to articles of agreement containing reciprocal covenants , for by designating the kinds of contracts that may be assigned, it “ negatives the idea that the legislature intended to make other instruments of a different species from those mentioned, assignable. Com sequently, it was adjudged that an article of agreement for the conveyance of land, by one party, and the payment of a price therefor by the other, is not assignable, under the statute. [See also, Craig v. Miller, 3 Bibb’s Rep. 443.] So, if part of a note or bond is to be discharged in personal services, it is not assignable under the statute. [Hulbert v. Dearing, 4 Litt. Rep. 9; Henry v. Hughes, 1 J. J. Marsh. R. 454.] Nor does an obligation to pay money, and to do other acts, which are neither a payment of money or property, come within the Kentucky statute; neither does it embrace a bond to collect money and pay it over to the obligee. ]Force v. Thompson, 2 Litt. Rep. 166.] In Missouri there is a statute substantially the same, if not identical with that of Kentucky; under which it has been held that anote for a certain sum, payable in work, is not assignable, so as to authorize the assignee to sue in his own name. [Bothick’s Adm’r v. Purdy, 5 Miss. Rep. 83; Able & Isbell v. Shields, et al. 7 Id. 120; J. & P. Miller v. Newman & Paulsel, 8 Id. 355.] We think it perfectly clear that the bond declared on, is ¡apt embraced by the act of 1812. The terms of that enact — 709 — ment are, that all bonds, &c. and all other writings for the payment of money, or any other thing, may be assigned, Spc. True, in technical parlance, thing is a word of exlénsive meaning, including not only lauds, tenements, &c., but personal or moveable property ; yet it may well be questioned whether the term thing, where it occurs in the statute, would not be restricted in its operation to things moveable, even if there were no accompanying words of limitation. The intention of the act, and the subject matter would perhaps indicate the propriety of thus restricting it. But if it be doubtful whether this conclusion can be supported by this general mode of reasoning, and by reference to extraneous facts, we think it obvious that the term payment in connection with money or other thing, shows that by thing we are to understand something transmissible from place to place; that is personal property which could be removed at the pleasure of the owner. In neither technical nor popular phrase do we speak of bonds or other writings for the payment of land; these usually stipulate for the conveyance of the title. The statute of Kentucky, which was held to embrace bonds, with a condition to convey lands, employs terms of much broader import than our act of 1812, yet in Newfong v. Wells, the court of appeals of that State intimate a doubt whether their statute had not been too greatly extended by construction, although it was thought safer to follow than depart from precedent; and in Bowman v. Frowman. it was held, that it could not be extended to articles of agreement containing reciprocal covenants. Consequently, a contract for the conveyance of land, by one party, and the payment of a stipulated price therefor, by the other, is not assignable, under the .statute of that State. It must be admitted, that our act of 1828, employs terms of •more comprehensive import than are used in that of 1812. ■While the latter is limited to bonds and all other writings for the payment of money, or any other thing, the former embraces all contracts in writing for the payment of money, or property, or performance of any duty of whatever nature. The direction that these shall be assignable as they previously were, instead of restricting the act to such writings as were — 710 — within the statute of 1812, is only intended to indicate the mode of transfer, viz : by indorsement. So the act of 1828 is much broader than the Kentucky statute, which only includes bonds, bills and promissory notes for money or property, and is as comprehensive as the Virginia act of 1795 ; which iu terms, and by construction, extends to all bonds, bills, and promissory notes, and other writings obligatory; and of course to bonds with reciprocal covenants, which stipulate to make titles to the land to the obligee. Upon the first presentation of this case, the question presented itself, whether the general terms “ performance of any duty of whatever nature,” should not be limited to contracts in writing, where the undertaking was absolute and unconditional, although the duty was to be performed in futuro. But further reflection and examination has satisfied us, that the assignee of a bond with reciprocal covenants may •maintain an action against the obligor in his own name, upon showing that the undertaking of the latter has become absolute by the performance of the conditions which are incumbent on the obligee. What has been already said in connection with the statutes of several of our sister States upon this subject, will suffice to show the reasoning by which this conclusion is attained, and render it unnecessary here to reiterate the argument. [See Burt v. Henry, 10 Ala. R. 874.] In the transcript, we find a bond such as that declared on, set out in extenso, together with a receipt purporting to have been made by the defendant, on the 20th April, 1836, for two hundred dollars, paid by the intestate on account of his obligation to pay for the lands to which the defendant and intestate are entitled by pre-emption, in the name of the former, and William Reynolds. In this receipt it is stated that the defendant is to advance the remaining two hundred dollars, and the intestate is to repay him with interest in ninety days after the date of the above receipt. Immediately following the bond and receipt, there is a writing subscribed with the names of the commissioners appointed by the orphans’ court to sell these lands, and also with the name of the administrator in his representative character; which writing is as follows: “Mobile, November 7th, 1840. The land for which the foregoing bond was given, and also that to — 711 — which the annexed receipt refers, having been purchased by John A. Chambers, and William W. Williams, at a sale of the interest of the late Andrew Dexter therein, the foregoing bond and the annexed receipt are hereby assigned to them.” Conceding that an administrator may transfer the choses in action of his intestate’s estate, in payment of his debts, or in the legitimate execution of his trust, and it may perhaps be questioned, whether, by joining the commissioners in the assignment of a bond, which we have seen they could not make, with the view o.f consummating a sale of land which the orphans’ court had not the power to order, the assignee became vested with a legal title to the bond. But it is doubtful whether these papers can be considered a part of the record, and we therefore decline furnishing a solution to the question ; the more especially as the cause may here be disposed of without a decision of the point. There is nothing in the transcript to indicate that the bond was ever assigned by the heirs of the obligee. We have not been able to find any decision in which the question arose, whether the heir or personal representative was entitled to a bond in favor of a deceased person, conditioned to make titles to land. The' cases most analagous are those upon covenants in respect to the realty, in which it is held, that if a breach occur in the lifetime of the obligee, the executor or administrator must sue, if after his death, the heir must sue. [See 2 Bibb Rep. 170, 180; 1 Lomax Ex. 286 to 293; 2 Id. 360, et seq. and citations in notes.] It may be assumed as a postulate, that where the demand offered as a set off, is a debt of the assignor, and would not be admissible if the action were brought by him, it cannot be received where the suit is in the name of the assignee. This conclusion is supported by the act of 1812, and is the result of the general analogies of the law. [Clay’s Dig. 381, § 6.] It is provided by our statute, that “ in all cases where there are or shall be mutual debts” subsisting between the plaintiff and defendant, or if either party sue or be sued, as-executor or administrator, where there are mutual debts subsisting between the testator or intestate, and either party, one debt may be set off against the other,” &c. [Clay’s Dig. 338, <§> 141.] This enactment, it has been held, is a substantia^ — 712 — copy of the two acts of 2d and 8th George II, on the same subject; under these statutes it has been decided that unliqui-dated damages cannot be the subject of a set off, although secured by a bond with a penalty ; but a penal bond is only admissible in such cases, where it stipulates for the payment of a certain sum of money. [Dunn, use, &c. v. White McCurdy, 1 Ala. Rep. 645.] And in McCord v. Williams and Love, 2 Ala. Rep. 71, it was determined that the damages'' resulting from the breach of a contract, are unliquidated,.-when there is no criterion provided by the parties, or by the' law operating on the contract, by which to ascertain the amount of damages. In Wilmot v. Hurd, 11 Wend. Rep. 584, it was decided that a set-off was not allowable where an action was brought for the breach of a warranty in the sale of a horse; that a set-off can only be allowed in actions founded upon demands,which could themselves be the subject of a set-off. [See Burgess v. Tucker, 5 Johns. Rep. 105.] So a set-off cannot be pleaded either in this country or in England for a moneyed demand, the amount of which is not referable to some-certain standard. [Roebuck v. Tennis, 5 Monr. Rep. 82; see also Sickles v. Fort, 15 Wend. Rep. 559; Driggs v.Rockwell, 11 Wend. Rep. 504; Littell v. Shockley, 4 J. J.Marsh. Rep. 245.] The sum which is demandable for the broach of the covenant contained in the condition of the bond is uncertain, and is to be ascertained by extrinsic proof, and according to the authorities cited, the defendant’s judgnaent, though unobjectionable in itself as a set-off in a proper case, could not be allowed as such, in the cause before us, if the objection to its allowance had been regularly made in the court below. But it does not appear that the plea of set-off was demurred to, and we infer from what is said in the bill of exceptions, that it was submitted to the jury as the basis of one of the issues.Assuming this to be so, if the plea correctly described the' judgment as to its amount, time when rendered, &c. the plaintiffs could not object to its admission; for by consenting to go to the jury with an issue upon the plea, they admitted its sufficiency, and waived in advance an objection to the record, by which it could be sustained. — 713 — In respect to the first charge to the jury, we have already seen that it cannot be supported. The sale of the land under the decree of the orphans’ court was ineffectual to pass the legal title to the bond to the purchasers; and the unauthorized assignment of it by the commissioners does not appear to have been confirmed by that court, even if it had been competent to validate it by its sanction. Without stopping to inquire whether the letter of the commissioner of the general land office, addressed to the intestate, was admissible, we think the construction placed upon it clearly indefensible. This letter is dated the 7th September, 1836, and informs the intestate that the writer had informed the land officers at St. Stephens to permit the entries of John M. Brown and William Reynolds, of the land claimed by them under the act of 1830 and by floats; and to refund to Messrs. Gager & Street the amount erroneously paid by them. For his reasons for that decision, he refers to his communication to the land officers of that date. Giving to this paper the most extensive meaning of which it is susceptible, and it does not appear that the confirmation of the claims referred to, was induced by any agency of the intestate, but merely that they had been confirmed. Nor does it establish the ful-filment by him of the stipulations of his contract, as evidenced by the condition of the bond. But conceding that the meaning of the letter was rightly interpreted, it may be asked} whether it is entitled =to any influence as an instrument of evidence ? It is unofficial, and as an admission, we think must be regarded as res inter alios, and is obnoxious' to the objection that the facts it narrates are not duly verified by the oath of the writer. Other points are raised upon the record, and have been discussed at the bar; but the view we have taken of the questions considered, is sufficient to show that the law was incorrectly ruled by the circuit court, and may perhaps serve as a guide to the ultimate decision of the cause. The judgment is reversed, and the cause remanded.