Phillips v. Holthaus

Lewís, P. J., delivered the opinion of the court. This cause was heard without a jury, and no instructions were asked or given on either side. There was a judgment for the defendant, and we can only look into the record to see if there was substantial testimony under the pleadings, upon which such a judgment might fairly be rendered. ' It appears from the testimony that, in February, 1875, a judgment was rendered in favor of the Capital Bank, against Elon Gr. Smith and Wilbur Gr. Bentley, for $584.50. The suit was, originally, against the Missouri Stoneware Company, and two other parties, also, but was dismissed as to them. In December, 1876, the Capital Bank made a sale and assignment of all its assets, in liquidation, to John Dierberger, the present defendant’s intestate. On July 3, 1878, the Capital Bank, for value received, assigned, “without recourse on said bank, to [658] A. C. Stewart, all its right, title, and interest, in and to” the judgment against Smith and Bentley, above mentioned. This assignment was executed under the seal of the corporation, with the signature of the president and the attestation of John Bierberger, as cashier. About March 27, 1884, John P. Colby, having taken an assignment of the same judgment from Bierberger, placed it 'in the hands of GK H. Ten Broek, for collection. The collector called on Bentley, who referred him to J. W. Phillips, the trustee plaintiff in the present case. After one or two interviews, Phillips offered to purchase the claim at the price of seven hundred and fifty dollars. This offer was accepted by Ten Broek, and was satisfactory to Colby, who thereupon caused a bill of sale to be executed by Bierberger to Phillips, to stand in lieu of the one which Bierberger had delivered to himself. But before any payment was made, the Capital Bank’s assignment to Stewart, which had escaped attention, was discovered, and this fact broke off the pending arrangement. In April, 1884, Bierberger died, and, subsequently, Colby instituted the present proceeding in the name of Phillips, as trustee in his behalf, by presenting for allowance in the probate court, against Bierberger’s estate, his claim for damages on account of failure of title in the claim which Bierberger had sold to Colby, or to Phillips for Colby’s benefit. The probate court gave judgment for the defendant. An appeal was taken to the circuit court, where the facts were brought out as above recited, and that court also rendered a judgment for the defendant. We do not perceive that any failure of title was shown. The sale and transfer of all its assets by the Capital Bank to Bierberger, in 1876, included the judgment in question. When, therefore, the bank undertook to convey the same judgment to Stewart two years later, it had nothing to convey, and the title remained in Bierberger, as before. It is of no consequence that [659] Dierberger attested the conveyance as an officer of the ■corporation. He did not thereby become a party conveying; but, even if he had so become, there would have been no compromise of his title, because the instrument in terms passes nothing more than the “right, title, and interest” of the Capital Bank. In this Dierberger’s ownership was not concerned. The plaintiff charges no failure of title otherwise than by reason of the conveyance to Stewart. For aught that appears in this record, Dierberger’s title, when he sold to the plaintiff, was as perfect as if the Stewart conveyance had never existed. The judgment is affirmed,. with the concurrence of all the judges.