Burke v. Whitcomb

The opinion of the court was delivered by Bennett, J. This suit was commenced before the passage of the revised statutes. The note, set forth in the disclosure, is payable upon a condition, that is, when the incum-brances then existing upon the land, the conveyance of which was the consideration of the note, should have been removed. This was a condition precedent, and the note was payable upon a contingency. It was not a debt, in presentí, to be discharged in futuro. Its becoming a debt rested in contingency. Until the condition was performed, no indebtedness existed, and no right of action would ever accrue on the note, in favor of the payee against the maker. It is well settled, in England, under the process of foreign attachment, that no Men can be acquired upon a debt, the very existence of which is dependent upon a contingency, for the very satisfactory reason that it is no debt. The same principle hau [424] been, and must be, applied to the trustee process given by gtatute jn many Gf the states. By our statute, to charge a person as trustee of another, he must have in his hands or possession “ money, goods, chattels, rights or credits” of person. By “ money, rights and credits,” we are to understand, money in the hands of the trustee, or debts due from him, belonging to the principal debtor. At the time of the service of this trustee process, Whitcomb had not the money of Davis in his hands; neither was he his debtor. But it is said thaj, though this debt rested upon a contingency, at the time of the service of the trustee process, yet, as the condition was afterwards performed during the pendency of the suit, Whitcomb should be held chargeable. But it is to be remembered that this note, or contract, while it rested in contingency, was, for a valuable consideration, indorsed or assigned to Clement, and notice thereof given to the maker. Though this note, being payable on a contingency, might not by the law merchant be negotiable, yet, the indorsement would transfer to the assignee the equitable interest in such contract. As it was assigned while it rested in contingency, and before it could be reached by the trustee process, its becoming afterwards liable to be affected by such process ought not to have a retroactive operation, and thereby defeat the rights of the assignee, acquired under a previous assignment, and perfected by notice. The judgment of the county court is therefore affirmed.