Wheeler & Wheeler v. Wheeler — 9 Cow. 33

Majority

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*Wheeler and Wheeler, executors of Wheeler, against Wheeler.

NEW YORK,

May, 1828.

Headnote

Executors are one person in íaw; fnd aots several, reiaih^ry,° sale dor release of the testators goods, are the ^ThJsfone of t”0 executors note Molding taeh^estator0* So he may

pledge such note or assign it, as collateral security for a judgment obtained against the estate of his testator.

The assignee of a chose in action, who takes it as collateral security for a debt, has a power coupled with an interest, and will be protected as an assignee against the release of his assignor made after notice of the assignment to the debtor.

To constitute such an assignee of a chose in action as courts of law will protect against the acts of his assignor, the assignment need not be absolute, or of the whole subject matter It is enough that it carry to the assignee a power coupled with an interest.

On demurrer to the replication of the plaintiffs to the second and third pleas of the defendant. The declaration was by the plaintiffs, as executors of S. Wheeler deceased, on a promissory note given by the defendant to the testator, dated September 5th, 1820, for $260, with interest.

Plea, 2dly, that after the capias sued, and before declaring, S. B. Wheeler, one of the plaintiffs, released the note by deed of release under seal, dated January 30th, 1826. 3dly. That before the suing out of the capias, Nathan Wheeler, the other plaintiff, released.

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Replication to both pleas, that before the making of the, in the pleag mentioned, viz, February 28th, 1825, S. B. Wheeler assigned the note declared upon to E. & S. - V * ' - P, Gilbert, a§ collateral security for a judgment obtained by the Gilberts in the supreme court, for $338 58, on the 6th of December, 1823, against the estate of the testator; the money, when received on the note, to b.e applied as payment on the judgment. That this suit was commenced for the sole benefit -of the Gilberts ; and that the defendant had notice of the. assignment on the day of its being made,

Geppral demurrer and joinder.

E. Williams, in support of the demurrer.

It is not denied that this court will notice and protect the interests of an assignee or cestui que trustbut he must be the cestui que tiust of the whole subject matter., (Prescott v. Hull, 17 John. 284 .) One of the two executors could not dispose of the property in the note due to his testator in any other way than by collecting it, and applying the avails to the payment of a debt *due from the estate. He has no power to assign for any special purpose. This was not, therefore, and could not be a sale or assignment of the note within the meaning of the cases. The act was void. But at most it is á mere pledge; and the court never have gone so far as to protect the mere, mortgagee of a chose in action.

A. Vanderpool, contra.

The assignment to the. Gilberts was valid. There cannot be a doubt that one of the executors had power to assign the note. The argument which would" defeat the assignment would equally defeat the release. But the right is clear as to both. (Bac. Abr. Executors and Administrators, (D.) and the cases there cited.) The act of one executor is the act of" both.

The assignees, then had, an authority coupled with an interest. (Canfield v. Monger, 12 John. 346 .) There cam not b.e any distinction between persons acting in their oxyn right, and executors, The, latter may compound or arrange debts due from their testator in any way, with the assets in

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théir hands. They may do everything necessary to effect the settlement of claim against them.

It follows that the reléase was void, as being after assignment and notice.

It appears, to be wéll settled,-that if á mail appoint several executors, "théy aré ésteéméd inláw as but onepersonrepresenting the testator; and that acts done by any one of them which relate to the delivery, gift, sale or releásé óf thé testator’s goods, aré deemed the acts of all.^[1] Thus a term of years passés by the assignment of one ;^[2] and if óne reléases á debt, it is good, and binds the rest.^[3] (Bac. Abr. Executors and and Administrators, (D.) and thé cases théré cited.) It was therefore competent for the executor to assign the note; and such assignment was valid so fár as respected the general power of the executor, if it cannot be supported, it must be for some other cause.

The note was assigned as a collateral security, for the purpose of being collected and applied to the satisfaction of the judgment. The Gilberts had an authority coupled with an interest, which the executor could not divest them of, without paying the judgment to which the note was to be applied.^[4] (Canfield v. Monger, 12 John. 346 .)

In Prescott v. Hull, ( 17 John. 292 ,) the doctrine is laid down, that to defeat the attempt of the assignor to discharge the debt, it- must bé ávéred by thé replication, that the debt was ássignéd for a full and valuable consideration,

[1] [1] Bogart v. Hertell, 4 Hill, 492 . Murray v. Blatchford, 1 Wen. 583. Douglas v. Satterlee, 11 John. 16 . Ex parte Rigby, 19 Ves. 462.

[2] [2] Dyer, 23, b. in margine, Simpson v. Gutteridge, 1 Madd. 616. See Turner v. Hardey, 9 M. & W. 770.

[3] [3] Anon. Dyer, 23, b. in margine, Jacomb v. Hartwbod, 2 Ves. Sen. 267. Where an action was brought by two out of four executors, and. the two executors who were not joined in the action, released the defendant, whd pleaded the release puis 'd&rrein continuance, the court óf exchequer refused to set aside the plea, the pláiritiffs having failed to make oút a casó bf fraud. Herbert et al. v. Pigott, 2 Cr. & M. 384; S. C. 4 Tyr. 285.

[4] [4] Hunt v. Rausmanier’s administrators, 8 Wheat. 174 . Mansfield v. Mansfield, 6 Conn. 559 .

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expressly avers the latter fact; and as to the consideration, -t wag to gecure anfi discharge the judgment as far as the note would produce that effect. It cannot be doubted that here is a good consideration to support the assignment. The Gilberts could not acquire an interest, if there was not a good consideration to rest on. The case of Canfield v. Monger, was this : A. delivered a note to B. to receive the amount and apply it to the payment of a note from A. to B. This was held to be an equitable assignment, and to .vest an authority and interest in B. and. that the suit is prosecuted for the benefit of th~ assignee. I think this has been done. The replication

If this view of the case be correct, the executor could not, by a subsequent release, affect the interest of the Gilberts. Such release, after the assignment and notice, was a nullity. (Littlefield v. Story, 3 John. 426 .)

The demurrer to the replication is not well taken, and the plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff.