McGehee v. Gindrat , 20 Ala. 95 ( 1852 )

CHILTON, J.

As it seems to be established that Patton, for whose use the suit against McGehee, in favor of Gindrat, was brought, had no interest in the recovery, McGehee had the clear right to settle the judgment with Gindrat, unless before tbe settlement be had received notice, or such facts had been communicated to him as were equivalent to notice, of the transfer of the judgment to Hutchinson.

The main question, therefore, in this case is, whether the charge of the court, in respect to the sufficiency of the notice, is correct.

It was incumbent on Hutchinson, who sought to avoid the settlement between Gindrat and McGehee, on the ground of his right to the judgment, to prove, by sufficient evidence, that he notified the latter anterior to the settlement. His counsel insists that, although McGehee was not notified that Hutchinson was the owner, still he had such information as would reasonably put a prudent man on inquiry, and that this is equivalent to notice.

We think a debtor has an interest, and consequently a right to know who the true owner of the judgment is. It may be that he has cross demands, which either at law or in equity he is entitled to set off; or, if he has no such demand, he is interested in knowing to whom he may look for reparation, in the event of an abuse of the process of the court in proceeding to collect the judgment. In the absence of all information, save such as the record furnishes, he must look upon the person for whose use the judgment is recovered as being true owner. If he be a fictitious person, or as the counsel terms it, “a man of straw,” then the debtor may treat the nominal plaintiff as the real owner, and proceed to settle the demand with him.

We have said this much to show that the information sought by McGehee of Colclough, as to who was the real owner of the claim, was such as should, in good faith, have been communicated to him, as a failure to do so might prejudice his rights, and lead to the adjustment of the demand with an improper person. But it is replied to this, that Colclough did inform him that Gindrat had no right to settle the judgment, and that the same had been transferred to one of his creditors ; this, it is argued, was sufficient to put him on inquiry, and consequently to charge him with notice. Fully conceding the rule to be that, whatever is sufficient to put a party upon inquiry is sufficient to charge him with notice, and that a want of notice of a fact, resulting from a failure to use proper diligence to ascertain it, fnrnisbes no protection to a party. 16 Ala. Rep. 597; 13 ib. 55; still this rule cannot be invoked by Hutchinson, as the facts are presented in this case. For here, inquiry was directly made óf him, or rather of his agent and attorney, which amounts to the same thing, and the inquiry proved ineffectual. Indeed he had given instructions to the attorney not to inform McGehee that he was the owner of the judgment, and thus rendered all inquiry of him unavailing.

Now, we think it may be safely asserted, as a rule founded in justice and law, that where a party, whose interest may be affected by want of notice of a fact peculiarly within his own knowledge, refuses to communicate it upon direct inquiry made by the opposite party concerning it, he ought not to be allowed, after his adversary has acted in ignorance of the fact, to charge him with implied notice from vague information, which should put him on inquiry, since the inquiry, as to him, has been made, and has proved abortive. That he gave such vague information, instead of making a direct communication of the fact when inquired of, although not an estoppel, might well have misled the other party, and have j ustified him in assuming that Hutchinson was not the owner, else his agent would have so informed him. The question then resolves4 itself into one of fact for the jury, namely: Did McGehee settle with Gindrat, in ignorance of the fact that Hutchinson was the owner, and was that ignorance the result of a failure to make proper inquiry on the part of McGehee, or of a failure to respond to such inquiry on the part of Hutchinson. If Mc-Gehee was in fault in failing to inquire, he can take no advantage of his ignorance. If, on the other hand, Hutchinson purposely withheld from him a knowledge of his claim, when called on to disclose it, he then becomes the party in fault, and should not be allowed to take advantage of his own wrong, and charge McGehee with implied notice of a fact which he purposely refused to disclose. That McGehee might have settled with the sheriff or attorney does not, we think, affect this principle.

These views sufficiently show that the charge of the court, when construed with reference to the facts, was wrong.

Let the judgment be reversed, and the cause remanded.