Mitchell v. Hackett & Dickenson

California Supreme Court Jul 1, 1860Published

Before: Baldwin

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Holding. The court held that a party who fraudulently represents ownership of an assigned judgment to obtain a non-negotiable note in satisfaction of that judgment cannot enforce the underlying debt, as the makers may rescind the contract upon discovering the fraud.

Issues

Whether a party who fraudulently claims ownership of an assigned judgment can enforce a non-negotiable note obtained through that fraud.
Whether a sheriff's return of satisfaction based on the receipt of a non-negotiable note is conclusive evidence of payment.
Whether the trial court erred in granting a new trial and immediately entering a contrary judgment without notice.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“they dealt with Mitchell as if he were owner, on his representation of that character—but they so dealt as not to bind themselves either to him or to his assigns, if the representations were fraudulent”

“the Sheriff is not authorized by his general powers, to receive anything but legal currency in satisfaction of an execution”

“It was irregular for the Judge to grant the new trial, and then immediately proceed to render a contrary judgment without hearing or notice.”

Synopsis

Elaintiit in execution, after assigning Ms judgment, pretended falsely and fraudulently to be the owner of it, and so pretending made a contract to discharge the judgment by taking the note of third persons not negotiable, in the mercantile sense, in payment; the makers of the note agreed to this under the supposition induced by him that he was the owner. Held, that the makers of the note, on discovering that the plaintiff was not the owner of the judgment, properly refused to pay the note, even to assignees before maturity thereof.

A Sheriff, under his general powers, cannot take anything but legal currency in satisfaction of an execution, and where he takes a note, indorses it on the execu- , tion and then returns it satisfied, the return is not conclusive, and, perhaps, not prima facie evidence of satisfaction, unless it shows some authority for receiving the note.

On motion for new trial, it is irregular for the Court to reverse its first judgment, and render a contrary one, without hearing or notice.

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

Respondents, in 1854, recovered judgment against one Jacob BE. Gardenhire, for some six hundred dollars and costs. On the same day the plaintiff therein assigned the judgment. Mitchell, without authority from the assignee, caused execution to be issued, and levied upon certain personal property, a portion of which was claimed by S. M. Gardenhire, a son of Jacob, the debt- or. Mitchell indemnified, and the Sheriff sold the property. S. M. Gardenhire sued the Sheriff for trespass, and recovered judgment for six hundred and fifty-three dollars. The plaintiff not making the money out of the property of the Sheriff, brought suit against the obligors on his official bond, Haekett & Dickenson, and recovered judgment against them for the amount, which they paid. The Sheriff then assigned to them the indemnifying bond which was made by Mitchell, as principal, and others as sureties. Haekett & Dickenson instituted suit upon the bond, and recovered judgment for the amount paid by them for the Sheriff. Upon this judgment they issued execution, and placed the same in the hands of the then Sheriff, who levied on certain personal property of Mitchell, and advertised it for sale. Pending this proceeding, Mitchell procured another execution to be issued upon the judgment against Jacob H. Gardenhire, and caused the same to be levied on certain personal property in possession of Jacob H. Gardenhire, the debtor. Afterward S. M. Gardenhire and one H. H. Martin, a son-in-law of Jacob [665]H. Gardenhire, executed their promissory note to Mitchell for the amount due on the execution, payable sixty days after date, under the promise and agreement that Mitchell would satisfy the execution and judgment of record, then standing against Jacob H. Gardenhire. The execution then in the hands of the Sheriff against him, Mitchell and others, sureties upon the indemnity bond, was returned satisfied by the indorsement of his note, and another given for costs, and the property levied upon was released and given up to Mitchell. When this note became due, the Appellants, to whom it had been assigned, demanded payment, which was refused, on the ground of fraud on the part of Mitchell, and want of consideration. Suit was brought on this note against the makers. The Court found in that suit that there was no consideration for the note, and that it was fraudulently obtained by Mitchell, and gave judgment for S. M. Gardenhire and U. H. Martin, the makers. The Appellants, Hackett & Dickenson, then issued execution upon their judgment against Mitchell and others, and had it levied on the property of Mitchell, to satisfy the same. This action is brought to restrain the proceedings under the execution, and for a perpetual injunction. The District Court, on the trial, gave judgment for the defendants, and, on motion for a new trial, reversed the former judgment, and entered judgment in favor of the plaintiff, and from this decree this appeal is now taken.

Mitchell v. Hackett & Dickenson

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