Copley v. Dowell

Martin, J. The plaintiff is appellant from a judgment which rejects his claim against the estate of one Nancy M. Strong alias Kirkpatrick, deceased. It appears he purchased this claim for one dollar at a sheriff’s sale on a credit of twelve months ; being the claim of his debtor, Morrison, who had been employed as an overseer for more than a year, at the request of his deceased sister made [28] in her will, on a plantation which was part of her estate : hot the plaintiff neglected to give notice of this purchase to the defendant, as executor of said estate, who in the mean while settled with Morrison, from whorn he obtained a final discharge. The petition alleges that 'this settlement and discharge were made and given by the connivance and fraud of the said defendant and Morrison, with the view of defeating the plaintiff’s claim. It does not appear to us that the court erred in rejecting this demand. A sale is complete as to the parlies thereto, as soon as they agree on its terms. But as to persons not parties to it, a deliyery must taire place before their rights can be affected. On the sale or transfer of a debt, the delivery takes place by notice given to the debtor of the transfer having taken place. Civ. Code, arts. 2612, 2613. The plaintiff in this case had acquired no right under his sale, against the defendant, at the time the latter settled with Morrison and took his discharge. If however he has any claim on the ground of connivance and fraud, it is not one which he can enforce in the court of probates against the defendant in his representative capacity. His remedy is against the defendant personally, and! in a court of ordinary jurisdiction. Judgment affirmed.