Downer v. Marsh

The opinion of the court was delivered by Redeield, Ch. J. The only question in this case is, whether the plaintiff or the claimant is entitled to the note in question. As we intimated, during the argument, this will depend upon the legal effect of what passed between the parties, before the service of the trustee process; whether it was sufficient to vest the title in the claimant, and affect the trustee with legal notice of his title. It was a part of the price of a farm, sold by Marsh to Tucker. At the time of the conveyance, Marsh, Tucker and the claimant, were present. It was supposed Marsh was indebted to the claimant, upon book, in a sum equal to the note, $215 ; but the account was not definitively settled; the note was taken for the purpose of paying the claimant this debt, and to be delivered to him; and this was understood by Tucker at the time he executed it. [560] Tucker went to the clerk’s office, and left his deed for record, and, as lie passed tlie claimant’s house, he was called in by Marsh, when he found him and Downer settling the account, and some question arising about one item, Tucker went home, leaving the claimant and Marsh settling the account, expecting them to close it that night, and Downer to receive the note. It was so done, and the note delivered to Downer that night, in payment of the account, as had been before arranged, and expected by all the parties concerned. The trustee process was served the next day. It seems to us that this must be regarded as sufficient notice to Tucker of Downer’s interest in the note. This question of notice, in cases like the present, is to be viewed as it would be between the claimant and the trustee, if he had paid the note to the principal debtor, at the time of the service of the trustee process. Had that been the case here, we think there can be no doubt it should be regarded as a fraud upon Downer, and he would be entitled to collect the note of Tucker, notwithstanding such payment. Tucker, from the facts, had no reason to doubt that the title of the note, and the possession was in Downer, and it was so in fact; this shows title in the claimant, and sufficient notice. Judgment that trustee is not liable, in regard to this note, and that the claimant recover costs in this court; and judgment for the plaintiff for the amount found in trustee’s hands, besides this note, and such costs as shall be equitable in the county court.