Mercantile Marine Insurance v. Corcoran , 67 Mass. 75 ( 1854 )

Dewey, J.

The position taken by the counsel of the plaintiffs, that the abandonment by the party insured, and its acceptance by the insurers, passed the property, with the rights and interests resulting therefrom, to the plaintiffs, to the extent of the sum insured, is well maintained by the authorities cited. 2 Arn. Ins. 995. Badger v. Ocean Ins. Co. 23 Pick. 356.

It was also the legal right of the plaintiffs, under the abandonment,, to have filed their claims for allowance with the com missioners appointed to hear and allow claims against the Mexican government. Nor does the fact of allowance to one person necessarily operate to bar the claim of another as for money held to his use, upon proof of an interest therein, and an equitable title to receive the same. Such cases are to "be found in the decisions of this court; Lee v. Thorndike, 2 Met 313; and of the supreme court of the United States. Comegys v. Vasse, 1 Pet. 193. Frevall v. Bache, 14 Pet. 95.

The plaintiffs, therefore, originally had a claim that might have been made available to them. The further inquiry is, whether they have lost the right to enforce this claim as against the defendant by reason of their laches in not asserting the same at an earlier period, and in forbearing wholly to present the same before the board of commissioners. The case shows that the right of the plaintiff under the abandonment attached as early as 1836; and that they took no measures to assert any right or interest in this claim on the government of Mexico until 1850.

The plaintiffs also omitted to interpose then: claim and cause the money allowed to the defendant to be retained for their benefit, by notifying the secretary of the treasury of their intention to contest the same, and instituting proceeding in the district court for the District of Columbia, as they might have done under the act of congress of 1849, c. 107, § 8. As to this remedy which was open to the plaintiffs, the court are inclined to the opinion that it is not exclusive of other remedies, and that the leading object of the provision was to enable the claimant to secure the retention of the money in the public treasury, and thus prevent its being passed over to the person to whom it was allowed, and who might be an irresponsible party.

The question in the present case resolves itself into this, whether the defendant is, under the circumstances disclosed, to be deprived of the fruits of his purchase of the claim of Lord and Williams, which have been realized solely by his vigilance in presenting and prosecuting the same before the commissioners. The plaintiffs have done nothing to secure any rights or interests they acquired under the abandonment. If the defendant had not, from his supposed exclusive interest in this demand, prosecuted this claim, and secured this award, the plaintiffs would have been just as remediless, as they will be if they now fail to recover the same of the defendants.

The facts in the case show great laches on the part of the plaintiffs, and such as might well have misled the defendant into the belief that Lord and Williams were the true owners of the claim, unincumbered by any such title as the plaintiffs now set up. They permitted Lord and Williams to present the claim as their own before the commissioners, and to have the same reported as a demand of theirs against the government of Mexico. It was this claim, thus allowed, that the defendant purchased. After the United States, by treaty with Mexico, assumed the payment of these claims, a new board of commissioners was appointed, and public notice given of the sittings of this commission, to hear and report a list of those holding such claims, and the amount to be allowed thereon. The plaintiffs still forbore to assert any right as claimants, or to give any notice impeaching the claim of Lord and Williams as the real parties interested in the same. While the plaintiffs thus virtually abandoned then superior claim, the defendant, who was also an assignee of the claim of Lord and Williams, but junior in time, presented the claim to the commissioners, and obtained an allowance of the same in his favor as assignee. We think, under the circumstances, this allowance to the defendant is to enure to his benefit, though he was a junior assignee. Under this allowance the defendant recovered the money of the United States. The plaintiffs seek to appropriate the same to their own use. But in the opinion of the court they should not be permitted at this late day to reap the fruits of the vigilance of the junior assignee, acting under a bond fide assignment on his part, so far as we can perceive. See Dearle v. Hall, 3 Russell, 1; Hulton v. Sandys, Younge, 602; Foster v. Cockerell, 3 Cl. & Fin. 456, and 1 Myl. & K. 297; Etty v. Bridges, 2 Y. & Coll. Ch. 486. The result is, that the verdict which was taken pro forma for the plaintiff must be set aside and there must be Judgment for the defendant.