Miller v. Dugan

Cole, J. — The facts are numerous, and it will conduce to perspicuity to group them with reference to their association and chronology. Thus arranged, they may be stated: First. In July, 1861, Wm. EL Miller, the father of plaintiffs, executed his five several promissory notes, aggregating $3,978 ; said notes were payable in one, two, three, four and five years, respectively, and were secured by a mortgage upon real estate, executed by said W. IT. Miller and Rebecca S. Miller, his wife. In December, 1863, said notes remaining unpaid, suit was brought thereon by Thomas Dugan, the owner of thfem, and to foreclose the mortgage. At the October term, 1864, the parties agreed, in writing, and filed the same with the clerk, that the plaintiff might have judgment for the amount due on the notes, with proper rebate of interest for those notes not then due, and for foreclosure; and that the defendants might pay said judgment in installments of $1,000 per year, commencing one year from the' date of the judgment; the clerk to assess the amount due. Judgment was rendered — 435 — .accordingly; but tbe clerk, in computing the amount due, by a mistake, made it $5,759.76, whereas, in fact, the true .amount then due was $4,540.16, the error being for $1,219.60 too much. Second, On the 21st of November, 1864, these plaintiffs paid, by way of purchase, on said judgment, to the plaintiff therein, Thomas Dugan, who is one of the defendants in this action, the sum of $1,008.33. On the 17th day of March, 1865, Dugan assigned said judgment to Andrew Davidson, who is also a defendant in this action; and on the 25th of November, 1865, these plaintiffs paid to said Davidson thereon, $1,200; and on October 19,1866, the sum of $1,000; and on August 1, 1867, the sum of $2,000. On the 19th day of February, 1868, Davidson assigned said judgment to Peter Jackson, who is also a defendant herein, and to whom these plaintiffs afterward and on the 13th day of May, 1869, paid $2,053, the whole amount of the balance due on the judgment upon its face, as calculated by the clerk. On the same day, the last payment was made, May 13, 1869, the defendants herein executed an assignment of said judgment to these plaintiffs, and which recited the judgment, its date, amount, etc., and also the several payments as above, and concluded as follows : “ Therefore, we, the said Thomas Dugan, Andrew Davidson and Peter Jackson, do hereby assign and transfer to the said John W. Miller and Charles S. Miller the said judgment, with all its incidents and securities, and all our right, title and interest therein, without recourse on us.” This was duly signed by said parties, the defendants herein. Third. All the foregoing facts transpired without any knowledge by any of the parties, so far as is shown, that any mistake had intervened. Afterward, and in June, 1869', the mistake having been discovered, Dugan was requested to correct it, which he declined. i Thereupon the defendant in said judgment, William H. Miller, brought his action in equity against Thomas Dugan, Andrew Davidson, Peter Jackson, John W. Miller and Charles S. Miller, setting out all the foregoing facts, and further charging Dugan with fraud, and asked — 436 — ¡to have the judgment corrected. The defendants Dugan, ¡Davidson and Jackson demurred to the petition, which demurrer was sustained. The defendants Millers made default. The plaintiff stood upon his pleading, and in January, 1871, judgment was duly rendered, dismissing the action as to the demurrants, and adjudging that as to the said John W. Miller and Charles S. Miller, the then holders and owners of the judgment, the same should be corrected. No appeal was taken therefrom by any party. Fourth. On the 9th day of August, 1871, this action was brought to recover the amount so overpaid by reason of the mistake. Upon the trial to the court the above facts were proven, and thereon, at the March term, 1872, the court rendered judgment for the defendants. The fact of the mistake is not controverted or doubted. That, the defendants have received in money $1,219.60 with its accumulated interest, in all amounting to a little more than $2,000, to which they had not and have not a shadow of right, either at law or in equity, is conceded. But it is claimed that by reason of the form or terms of the transactions the plaintiffs cannot recover back the money so paid. If this is so, it is a just reproach to the law, and shows that it does not accomplish its purpose — the attainment of justice. The equities of the plaintiffs are so strong and patent as that no man of conscience can either fail to see or resist them. But it is claimed by the defendants’ counsel, that this is a law action and that the rights of the plaintiffs are to be determined by the strict rules of law applied to the contract of assignment of the judgment by the defendants to the plaintiffs. ' Grant it. The assignment is above set out, and the essential words are: “We do hereby assign and transfer to the said John W. Miller and Charles S. Miller the said judgment with all its incidents and securities, and all our right, title and interest therein, without recourse on us.” This assigment is two-fold. It'is, first, an absolute assignment of the “ judgment with all its incidents and securities, without recourse.” And, it is, isecond, an assignment of “all our right, title and interest — 437 — therein, without recourse.” The last does not limit the first; but the rights and liabilities of the parties under the first are just the same as they would be if the last was omitted. That is, the defendants are liable as upon an assignment of the judgment without recourse. By such an assignment, as we have already held, in Watson v. Cheshire, 18 Iowa, 202, the assignor is not discharged, unless it .is otherwise agreed and expressed, from liability upon the implied warranty that the paper so transferred is genuine, and not forged or fictitious ; that it is of the kind or description which it purports to be; that the assignor has done nothing and will do nothing to prevent the assignee from collecting the claim assigned; that the parties to the instrument are sui ju/ris and capable of contracting, and that it has not been paid. That the obligations of a transferrer of paper, without recourse, are substantially the same as those of a transferrer of paper when payable to bearer, by delivery. And the doctrine, as laid down in Fenn v. Harrison, 3 Term 757, is quoted and approved as follows : “ If a man pass an instrument of this kind without indorsing it, he cannot be sued as indorser, but he is not released from the responsibility which he incurs by passing an instrument which appears to be of greater value than it really is.” The transfer of the judgment without recourse, then, does not relieve the transferrers from liability upon the implied warranty “ that it is of the description which it purports to be,” to wit: A valid judgment for $5,759.76. Nor does it relieve them from responsibility if it “ appears to be of greater value than it really is,” to wit: $5,759.76 instead of $4,540.16. . A judgment is a chose in action, and like a negotiable note past due, or a non-negotiable note, may be transferred, and hence, under the express decisions of our own court, the transferrers without recourse are liable if it is not what it purports to be. A judgment is not in a technical legal sense personal property, nor has the law of sale of personal property ever been applied to it. But, even if we were to look to that law and apply its analogies, we would be led to the same conclusion. — 438 — For it is well settled, that if a man sell his horse to another without warranty and without recourse, and at the time of sale the horse be dead, the purchaser may recover the price paid. In such case as in this, so far as the amount of the mistake is concerned, the thing sold had no vital existence. But, if these defendants had only made the assignment as-contained in the second division as above, to wit: “We do hereby assign and transfer all our right, title and interest in the judgment without recourse,” then under our decisions in Wolcott v. Timberman, 28 Iowa, 454, and Scofield v. Moore, 31 id. 241, the two defendants, who were themselves assignees of the judgment, and ignorant of any mistake therein, would not be liable. Whether the judgment plaintiff would be exempt from liability is not there decided. In the first of the two cases Timberman was himself an assignee and was ignorant of any defect in the subject-matter assigned; and only “ assigned all his interest therein without recourse ” to Wolcott. He was held not liable by reason of the defect. So in the other case, Scofield was also an assignee of the judgment, ignorant of any payment on it, and he too made an assignment only of his right, title and interest, without recourse; and the case is grounded and made to turn upon the facts that he only assigned his interest and acted in good faith. Neither of these cases, therefore, can be relied upon to support the judgment of the circuit court in this case. There is no force whatever in the suggestion that the judgment creditor, Dugan, may have sold the judgment to his assignee for less than its face or in a lumping trade; for by a proper defense and cross-action in equity as against his co-defendants, their respective rights and equities can be or might have been adjusted in this case; or that can be done in another action. At all events a court of equity is competent to do complete justice between the parties according to the facts, and we cannot be induced to adjudge that these defendants shall keep over $2,000, of money belonging to plaintiffs, and to which they confessedly have no right, sim — 439 — ply out of a fear that a court of equity cannot do justice in a proper case between these defendants. As respects the effect of the judgment on the demurrer for these defendants, and upon default against these plaintiffs, at the suit of the judgment debtor to correct the mistake, it may be said that since these plaintiffs were the owners of the judgment, and their co-defendants had no interest in it, the entire judgment there was probably correct; but neither the demurrants nor these plaintiffs could rely upon it as an estoppel against the other. Reversed.