Jordan v. Black, 6 N.C. 30, 2 Mur. 30 (1811)

July 1811 · Supreme Court of North Carolina

6 N.C. 30, 2 Mur. 30

Jordan v. Black and Hornibleau.

Appeal from the Court of Equity for Perquimons.

A. having recovered a judgment against B, assigned it to C; B. obtained an injunction, and C. in his answer, insisted that the judgment had been assigned to him for a valuable consideration, and that he had no notice of the equity of B. Held,

That the judgment was a chose in action, and that a purchaser of a chose in action for a valuable consideration, without notice of another’s equity, stands in the same situation with the assignor of the chose ; and is not protected by being a purchaser for a valuable consideration without notice, against the claims of him who has equity.

William Black, one of the Defendants, recovered a judgment at law against the complainant, against which judgment the complainant obtained an injunction, upon the ground that the debt was due to the Defendant and one David Black, trading in partnership as merchants under the name and Ann of William Black, & Co.; which company had failed, and both parties were insolvent, ha\ ing assigned all their debts and effects to their creditors, who had thereupon appointed David Black their agent: that after this appointment, Complainant had accounted with David Black, as agent aforesaid, and taken a full discharge. To these allegations, the Defendant, William Black, answered, that the copart-nership had been dissolved some months before the Complainant contracted the debt on which the said Defendant had recovered judgment: that the debt was contracted with the Defendant alone, the Complainant having full notice of the dissolution of the said copartnership. The other Defendant, Elizabeth Tlorniblcau, charges that her Co-Defendant, William Black, by deed duly executed, bearing date the first day of June, 1804, assigned the same debt to her in satisfaction pro tanto, of a debt justly due to her by the said William Black ; and denied notice of Complainant’s equity, and also denied all the allegations of the Complainant’s bill. Upon this, an issue was made, up to try whether the debt was a copartnership debt or the individual debt of William Black: and to prove the debt to be a copartnership debt, the only testimony offered, was the deposition of the other partner, David Black, upon whose testimony the issue was found for the Complainant, and a decree was made perpetuating the injunction; from which the Defendants appealed to this Court, upon the following points: 1st. Was David Black a competent witness ? 2d. If he be a competent witness, Elizabeth Hor-nibleau, being a fair purchaser for a valuable consideration without notice of Complainant’s equity, will a Court of Equity interpose to defeat her of the recovery at Law ?

Haxi, Judge,

delivered the opinion of the Court:

The Law relating to the competency of witnesses is too well settled at.this day to leave any doubt upon the first point submitted in this case. The general rule is laid down in the case of Bent v. Baker, “ that the witness is competent, if the verdict cannot be given in evidence- either for or against him in any other suit/’ &c. The finding of the Jury upon the issue submitted to them in the present case, cannot be used by the witness as evidence in any other suit. There may be exceptions to the general rule, but this is not one. The deposition of David Black was therefore properly received.

As to the second point, it is to be observed, that Mrs. Hornibleau has taken au assignment, of a chose in action, a judgment, a thing in its nature not assignable at Law. She therefore cannot stand in a better situation than her assignor. Upon an examination of the authorities upon this subject, it will be found, that the ground taken by Mrs. Hornibleau is tenable by those persons only, who, having the “ legal title” in them, plead that they are purchasers for a valuable consideration and without notice. By this plea, they shew that they have as much equity on their side as their opponents, and that being the case, a Court of Equity will not interfere, and divest them of their legal title. All that Mrs. Hornibleau shews, is, that she purchased Black’s right to a chose in action ; She then has no legal, but only an equitable right. But. Jordan- shews, that Black obtained the judgment against him unconscientiously, and this Court will say, in such case, that he shall not have the benefit of it, nor shall Mrs. Hornibleau, as she can stand -n a situation no better than her assignor. Let the injunction therefore be perpetuated.