Gerrish v. Clough , 36 N.H. 519 ( 1858 )

Bell, J.

In giving a construction to a written instrument, the court take into consideration the situation and circumstances of the parties and of the subject of the controversy. In relation to these, extrinsic evidence is properly admissible. Webster v. Atkinson, 4 N. H. 21. If, upon comparing the language of the deed with the surrounding circumstances, there is no doubt of the intention of the parties as to the property to be conveyed, any particulars of the description, which appear inconsistent with that intention, are merely disregarded. Harvey v. Mitchell, 31 N. H. (11 Roster) 575. Here the first impression upon reading the assignment might he, that the debts described were debts due to the two assignors jointly; that they were claims for goods sold and delivered, and of a larger amount than the notes in question; but when it appears by the evidence that the assignors had no joint claim, or joint action, nor any several claims or suits, except those now claimed by the defendant, it cannot be doubted that these were the claims intended. If the assignment is not so understood, it must be held entirely inoperative, a conclusion against which the law leans very strongly. 2 Black. Com. 379; Touch. 83, 87 ; Cocheco M. F. Co. v. Whittier, 10 N. H. 305.

Notice was very early given to the plaintiff, of the assignment of these actions — a circumstance which shows the understanding of the defendant as to the claims intended to be assigned.

In equity, the assignee of a chose in action, not assignable at law, was always regarded as the owner; 2 Story’s Eq. Jur. 304, 5 ; and courts of law have for a long time protected the equitable rights of such assignees. The assignor is not permitted to control the action, necessarily brought in his name to enforce the claim, and his discharge would not be regarded at law. Sanborn v. Little, 3 N. H. 539; Dunklee v. Steam Mill Co., 23 N. H. (3 Foster) 245 ; Thompson v. Emery, 27 N. H. (7 Foster) 269. In such case the court may order the release to be given up, and on motion will set aside the plea of release, on the ground that the nominal plaintiff, having no interest in the suit, his release is a fraud upon those who have; and the defendants, knowing this, could not be permitted to obtain and plead a release from one who was not the actual party. Webb v. Steele, 13 N. H. 239. The same principle of equity would require the court to hold that it was equally a fraud in any subsequent action for any person to attempt to set up a claim or defence, inconsistent with the equitable rights of the assignee. Such in this case would be the attempt on the part of a grantee, whose deed was fraudulent as against the creditors of the grantor, to set up such fraudulent conveyance against the creditor’s assignee, on the ground that perhaps in strictness he had not the legal title.

Any doubt which might be supposed to exist on this subject, is, however, effectually removed by section 14 of chapter 196 of the Revised Statutes, which provides that “ the person having the estate or right of the creditor, purchaser or debtor, in any real estate taken in execution, shall be deemed to be, and shall have the rights, privileges and remedies in all cases of the creditor, purchaser or debtor, as to all persons having notice of his right; and no act done by or to the original creditor, purchaser or debtor, shall thenceforth be of any validity.”

Effect cannot be given to this statute, so as to give to the assignee of the original creditor “ the rights, privileges and remedies in all cases” of such creditor, in any other way than by holding that such a levy passes to such assignee the legal title, as to all persons cognizant of his interest.

Such was evidently the opinion of the court in Baker v. Davis, 22 N. H. (2 Foster) 27, where it was held that an officer cannot justify making a levy on the real estate of the debtor, in pursuance of the directions of one of the creditors, who was known to him to have assigned all his interest in the judgment to the other creditor, who had directed a levy to be made on personal property; and in the case of Lyford v. Dunn, 32 N. H. 81, in which it was held that where a debt and the suit upon it were assigned, and the assignment was put on file in the action, the assignee is to be regarded as the creditor to whom the execution is to be paid and satisfied, and the levy of the execution and delivery of seizin are to be made to him. Placing the assignment on file in the action is not otherwise material, than as it is a notice of the assignment, and the notice given in this case must be equally effectual. The ruling of the court below being erroneous, there must be

A new trial granted.