Opinion
(August Term, 1851.)
1. The legal effect of the sale and delivery of a bond without endorsement is not to pass the legal title to the purchaser, for the vendor may release it if he thinks proper to the maker of the bond. But the purchaser is constituted the agent of the vendor and the money vested in him as legal owner the moment it is collected, for the chose in action, of which the vendor was the legal owner, is extinguished by an act which he had authorized to be done, to wit, the reception of the money. The money then vests in the purchaser as legal owner by force of the contract of sale which thereby became executed.
2. Therefore, where such a purchaser obtained judgment in the name of the vendor, and the sheriff collected the judgment and, after notice by the purchaser, paid money to the vendor: Held, that he was notwithstanding answerable to the purchaser for the amount.
APPEAL from Settle, J., at BURKE Spring Term, 1851.
Assumpsit for "money had and received." One Fleming held a bond for $297 on one Holcomb and one Brigman. Fleming sold the bond to the plaintiff's testator, and delivered it to him without endorsement. The testator instituted suit on the bond in the name of Fleming and took judgment, from which there was an appeal, and the (325) defendant's intestate was security for the appeal. There was judgment against Holcomb, Brigman, and the defendant's intestate. The testator sued out execution directed to the sheriff of Yancey and put into the hands of the defendant's intestate, who was then sheriff of Yancey, and directed him to collect the money out of Brigman, and informed him that he (the testator) had bought the bond from Fleming and was entitled to the money, and gave him special instructions not to pay the money to Fleming, but to pay it to him. The defendant's intestate received the money from Brigman. It was demanded by Fleming, who alleged that there were certain conditions annexed to the sale of the bond, and the defendant's intestate paid it to him, taking a bond of indemnity. The plaintiff's testator demanded the money of the defendant's intestate, who refused to pay on the ground that he had paid it to Fleming. The defendant's intestate endorsed on the execution, "Satisfied," and returned it to office. Both parties soon afterwards died, and this action is brought by the executors of one against the administrators of the other. Upon the above state of facts the jury returned a verdict for the plaintiff, subject to the opinion of the court upon a point of law reserved as to the plaintiff's right to recover upon the facts in the case. His Honor being of opinion against the plaintiffs, set aside the verdict and directed a nonsuit. The plaintiffs appealed.
Avery and Bynum for plaintiff.
N.W. Woodfin and Gaither for defendants.
As the intestate was sheriff and also one of the defendants in the execution, he had no power to act in his official capacity. The question can, therefore, be presented in a plainer view by relieving it from both of those circumstances and treating it as if the testator had handed the execution to a third person, who was neither sheriff (326) nor one of the defendants, with the instructions above stated; the money is accordingly received and is paid to Fleming, and the question is, Is this payment to Fleming an answer to the action?
Fleming was the legal owner of the bond after the sale and delivery to the testator. He was also the legal owner of the judgment, had control of it, and might have released it at any time while the "chose in action" was in existence.
The legal effect of the contract of sale and delivery of the bond was to constitute the testator an agent of Fleming to receive the money, but the money vested in the testator as legal owner the moment it was received, for the chose in action, of which Fleming was the legal owner, was extinguished by an act which he had authorized to be done, viz., the reception of the money, and the money vested in the testator as legal owner by force of the contract of sale which thereby became executed in the same way as if Fleming had himself received the money and handed it to the testator in execution of the contract.
If, therefore, the testator had called on Brigman and received the money, it would have been his, and Fleming would have had no right to it or cause of action for it.
The circumstance that the testator, instead of going himself, sent the defendant's intestate for the money can make no difference. The instant he received it it became the money of the testator, and the payment to Fleming "was in his own wrong." He must look to his bond for indemnity.
PER CURIAM. Judgment reversed, and judgment for the plaintiffs according to the verdict.
Cited: Monday v. Silver, 47 N.C. 391; Johnson v. Sikes, 49 N.C. 70; Crawford v. Woody, 63 N.C. 103; Gibson v. Smith, id., 105; Kiff v. Weaver, 94 N.C. 278; Bank v. Waddell, 100 N.C. 343; Redmond v. Staton, 116 N.C. 143.
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