Thomson v. Bradford

23 F. Cas. 1098, 7 Biss. 351

• Court: District Court, D. Indiana
• Decided: January 15, 1877
• Status: Published

Opinion

GRESHAM, Circuit Judge.

The only question now in the case is as to the distribution of this fund. Lewis’s assignees in bankruptcy, claim it as being the holders of the first of the four $5,000 notes. Powell claims it by assignment from Lewis of the second and third notes. Copies of these notes are annexed to Powell’s cross-bill. The assignment of them is in thesa*words: “For value received, I assign the within note to N. Powell, and agree to take it up at maturity. H. Lewis.” The testimony taken by the master shows that the mortgage to Lewis was merely to indemnify him as indorser for Shipp on divers notes and bills, the particulars of which as to dates and times of maturity are not given, and that the four notes described in the mortgage were mere fictions.

Whatever right Powell had as against Lewis he has against his assignees in bankruptcy. Powell's rights were in nowise impaired by the bankruptcy of Lewis. The assignees of Lewis can assert no right as against Powell, that Lewis himself might not assert, If he were not a bankrupt. The assignees are in strict privity with Lewis, and bound by his. contract with Powell. The bankruptcy of Lewis conferred no greater right on his assignees to the tund in court than Lewis himself would have had.

It is insisted by Lewis's assignees, that the priority accordea to successive installments of a mortgage debt entitles them as the holders of the first note to the fund in court as against Powell, who holds the second and third notes. But the mortgage notes do not represent installments of indebtedness — they are mere fictions, and had no other effect than to fix the time for paying the damnified indorser Lewis could not have foreclosed against Shipp for the amount of the notes. The priority accorded to successive payments of a mortgage debt has its foundation in the rule governing the application of payments. Goodall v. Mopley, 45 Ind. 355. That rule has no application to this case.

When the second and third notes passed into the hands of Powell before maturity without notice of their character, they ceased to be fictions. Shipp then became liable to Powell, whether Lewis was damnified or not, and if Lewis had sued Shipp to recover money paid on indorsements the latter could have pleaded the assignment of the second and third notes to Powell. As between Shipp and Lewis the assignment to Powell was a payment by Shipp to Lewis. That payment would stand against the first sum that Lewis might be obliged to pay as Shipp’s indorser. Lewis had no right to sell Shipp’s notes, and in doing so he committed a fraud.

The fund and parties are all in court Courts of equity are not inclined to favor circuity of action, and they never require a vain or foolish thing. It would seem to be trifling with justice to order the money in court to be paid into the hands of Lewis’s assignees and then require them to pay it over to Powell, or to remand Powell to an action to recover it. When a court of equity gets control of a fund and the parties entitled to it, it will at once place the money where it must ultimately go. Dixon v. Clayville, 44 Md. 573.

An order will be entered directing the money in court to be paid to Powell.