Gary v. Bates , 12 Ala. 544 ( 1847 )

ORMOND, J.

The bankrupt law, divests all property, and rights of property, of every name, nature, and description, out of the bankrupt, and vests it ipso facto, in the as-signee. As to all his property, and rights of property, previously held by him, he is civilly dead, and the legal title thereto vested in the assignee. It follows necessarily, that as the as-signee is the legal owner of the judgment, previously belonging to the bankrupt, he must also be entitled to any claim against the sheriff resulting from his default, or negligence in respect to that judgment, and being substituted in the place' of the bankrupt, cannot enforce it against the sheriff in the name of the bankrupt, blit must proceed in his own name, as he is clothed with the legal title, as well as being the owner of the beneficial interest.

And this creates the difference between this case, and Brazeal v. Smith, 5 Ala. 206. The assignment, of a judgment inpais, does not transfer the legal title, and consequently if any act is necessary to be done, to make the judgment beneficial, as the suing out of process upon it, &c., it must be in the name of the plaintiff, who has the legal title, and who therefore, by his transfer, must have authorized the use of his name, to make his assignment beneficial to the assignee. The transfer, by the operation of the bankrupt law, as we have seen, not only gives the beneficial interest, but also confers the legal title.

The sheriff cannot, it is true, object to an irregularity in the execution, or to the use of the plaintiff’s name, in a proceeding against him, though he has parted with the beneficial interest in the judgment. But that is wholly unlike this case. If he is responsible to any one for the failure to return the execution, it is not to the bankrupt, but to another person who has the right to the beneficial interest, and having also the legal title, can alone sue for its recovery.

From this it appears the court did not err in overruling the demurrer of the plaintiff, to the plea of the defendant, and its judgment must be affirmed.