Scofield v. Moore

Cole, Ch. J. — The .only real point of controversy in this case is, whether the transferrer of a judgment, a part of which 'has been, paid, but of which fact he has no knowledge, is liable to the transferee for the amount so paid, when he transfers only his right, title and interest in the judgment, and that without recourse. The particular form of the transfer or assignment in this case is peculiar, and we ground our conclusion upon its peculiar phraseology. Its substance is well set forth in the findings of fact by the court, and in full, it is as follows: “ Eor value received, we hereby sell and assign all our right, title and interest in this judgment, to Thomas P. Moore, without recourse on us.” Ordinarily, the words “without recom-se” have only the effect to exempt the transferrer from liability by reason of the insolvency of the obligors. Such a transferrer guarantees the genuineness of the instrument transferred, and its vitality as a binding obligation. But it is clear that a transferrer may, if he can find another who will so' contract with him, stipulate for his exemption from liability by reason of the fictitious character of the instrument, or its nullity as an obligation. The real question then is, what is the true construction — the legal effect of the language of this transfer or assignment % The transferrers do not assert any positive ownership of the judgment, nor that it has any present obligatory force. In effect they say to the assignee “ there is a judgment upon the records of the court and it has been assigned to us upon the record also, by the judgment plaintiff; we [244] have no knowledge other than is disclosed by the record; we do not propose to sell you the judgment, we only offer to transfer to you dll our right, title and interest in it, whatever that may be.”' Now, without the use of negative words, it is difficult, if not impossible, to find language more potent or effective in excluding all idea, of personal liability in any event than the language of this transfer, and in analogy to the adjudicated legal effect of the language of this transfer when used in conveyances of real estate, and followed by express covenants having reference thereto, we are led to hold that these transferrers.were not guarantors of the amount due upon the judgment. See McNear v. McComber, 18 Iowa, 12; Street v. Rider, 14 id. 506; Davis v. Murphy, 14 Ind. 158; Watson v. Chesire, 18 Iowa, 202, and cases there cited; Wolcott v. Timberman, 28 Iowa, 454. Of course, if the transferrer makes any false or deceitful representations, or even conceals his knowledge of defects or infirmities in the instrument transferred, such representations or fraudulent concealments will make the transferrer liable. In this case there is no finding of fact nor any claim even that the transferrers either made any representations or had any knowledge in relation to the part payment of the judgment transferred, or of any other defect in it. They simply transferred their interest and the defendant must be held to have taken the same under the common-law rule caveat emptor. Inasmuch as the judgment plaintiff, who reeeived'the part payment on the judgment prior to his assignment of it, might be liable, under the rule herein held, to his immediate transferees; and since his liability over to this defendant, the transferee of his transferees, may be mooted, as it is discussed in Watson v. Chesire, supra, we simply desire to say that, notwithstanding the discussion contained in the opinion in that case, we regard it as still an open question. The judgment in the district court should have been for the [245] full amount of the note and interest, and for the foreclosure. For this error it is Reversed.