Hunter & Davis v. Levan & Wife

Baldwin, J., delivered the opinion of the Court Terry C. J., and Field, J., concurring.

[12]This suit was brought on a note and mortgage executed by defendants to one Howard, and assigned by him to the plaintiffs. The assignment was unconditional, and in the usual form of such instruments. The Court finds that this assignment was made to plaintiffs by Howard to indemnify them against injury on account of their suretyship for him on a bail bond—the proceedings on which are now pending in this Court. This proof of the purpose and character of this instrument seems to have been made by parol. The Court ordered a sale of the mortgaged property, with directions to pay the money into Court to await its further decree.

We do not see any error in this decree to the prejudice of the defendants. By this arrangement, to say the least of it, the plaintiffs were made the pledgees or bailees of Howard, in respect to this debt assigned, and were bound to take the proper care of the subject of the Court. They were not bound to suffer the debt to be barred, or the chances of the property going to waste, before collecting the debt or foreclosing the mortgage, as might be the case if proceedings were delayed until the question of their liability on the bond was settled.

It is not necessary to decide whether, as this assignment was in writing, it would be admissible for Howard, or those claiming under him, to show by parol that what imparted an absolute sale or transfer was really a sale only on condition.

There was no error in striking out the answer of the defendants, to their prejudice, as it merely set up the facts upon which we have already passed, and some others not affecting the merits.

Decree affirmed.