Buckmaster v. Eddy, 1 Ill. 381, 1 Breese 381 (1830)

Dec. 1830 · Illinois Supreme Court

1 Ill. 381, 1 Breese 381

N. Buckmaster, Plaintiff in Error, v. Henry Eddy, Defendant in Error.

ERROR TO GALLATIN.

A bond for the conveyance of land executed on the 9th day of January, 1819, is not assignable. The statute of 1807 governs in such case.

Opinion of the Court by

Chief Justice Wilson.

This is an action brought in the circuit court of Gallatin county by H. Eddy, as assignee of William Grundy, upon a bond executed by Buckmaster to Grundy on the 9th day of January, 1819, and which is alleged in the declaration to have been assigned to Eddy on the same day. The penalty of the bond is eight hundred dollars, conditioned to be void upon Buck-master’s making a deed to Grundy to a certain tract of land. The defendant below, after having taken several exceptions to the proceedings, suffered judgment to go by default, and then moved in arrest of «judgment, on the ground that the instrument upon which suit was brought was not assignable, which motion was overruled by the court. This is assigned here, for error, and is principally relied on to reverse the judgment.

Gatewood and Semple, for plaintiff in error.

Eddy, for defendant in error.

It is not pretended that at common law, this bond is assignable. Has the statute then of 1807,^* which was the only one in force relative to the assignment of writings at the time this was executed, embraced it ? The first section of that statute makes all notes in writing for the payment of money, assignable ; the fifth section provides that “ the assignments of bills, bonds or other writings obligatory for the payment of money, or any specific article shall be good,” and the assignee may maintain an action in his own name. The writing upon which this action is brought, is for the conveyance of land, and does not come within the description of assignable instruments specified in the statute. The word “ property ” has been decided to be a general term, including every visible subject of ownership, but this comprehensive meaning of the term may be circumscribed, by coupling with it other terms which from their common acceptation, as well as their grammatical construction, are applicable to one class of property, in contradistinction to another. In the statute under consideration, however, the word property is not used ; the language is, “ money, or any specific article.” These are not technical terms, including as well real, as personal property. On the contrary they are terms applicable to objects of a personal nature, and can not, by a fair construction, be made to embrace real estate. The judgment of the court below must be reversed. ⁽¹⁾

Judgment reversed.

* Rev. Code of 1807, p. 48.

(1) A deed containing mutual covenants, on the one part to lease a house and machine, and keep the machine in order ; and on the other, to pay the rent and return the machine, is not assignable so as to transfer the legal interest. Beezley v. Jones, 1 Scam., 34.

The lessor can not assign a lease by indorsement, so as to give the assignee such a legal interest as can be enforced in his name, although the assignee may, in that way, acquire an equitable title to the rents. Chapman v. McCrew, 20 Ill., 101. Dixon v. Buell, 21 Ill., 203.

Equity treats the assignee of a contract not assignable at law, as the party in interest, and will afford him relief in a proceeding instituted in his own name. Id.

A judgment is not assignable so as to authorize an execution to issue in the name of the assignee; it should still issue in the name of the assignor. Elliott v. Sneed, 1 Scam., 517. McJilton v. Love, 13 Ill., 495.