Cooke v. Pool , 1886 S.C. LEXIS 176 ( 1886 )

The opinion of the court was delivered by

Me. Chief Justioe SimpsoN.

One J. M. Crotwell held a judgment on Seth P. Pool for the sum of $164.50, which he assigned to Thompson H. Cooke, attorney at law. Cooke assigned the same to his brother, Henry P. Cooke, the plaintiff in this action. Henry P. Cooke instituted the action below to set aside a certain deed of the said S. P. Pool to certain of the defendants as fraudulent and void, it having been executed, as alleged, to defraud creditors. The defence set up in the answer of defendants denied the fraud in the deed, also the assignment of the judgment from Crotwell to T. H. Cooke, and claimed that the deed from Seth P. Pool to S. H. Pool was bona fide and for a valuable consideration.

The case having been referred to the master, he reported the following facts: That on April 6, 1878, J. M. Crotwell obtained a judgment by default against Seth P. Pool for $164.50, with $23.05 costs. This judgment was assigned by said Crotwell to T. H. Cooke, attorney, on July 3, 1882, and by said Cooke to H. Powell Cooke, the plaintiff in this action, on August 8, 1882. As to the illegality of the transaction between Crotwell and Cooke he reported: “That Crotwell mentioned having a judgment on Pool, but did not tell him that he wanted him to try and make the money. After this Cooke went to see Crotwell, and asked him to assign said judgment to him, which was done, with the understanding on the part of Orotwell that he would have nothing more to do with it, and that he AYas not responsible for costs. * * * At the time of the assignment nothing was said about what Cooke Avas to pay for the judgment, but some time after-wards, a month or íavo, Cooke agreed to pay $100 for the judgment, and gave his note for that amount, with the understanding that he Avas not to pay until the ease Avas settled. Cooke admits that he bought the judgment expecting to make something out of it, and he expected to make it by bringing a suit like this, if he did not make it otherAvise. He assigned the judgment to his brother, the plaintiff, on account of a debt he owed him. Crot-well told Cooke before and after he assigned the judgment to him that he did not intend to have any more litigation about it.” After the master’s report Avas filed, T. H. Cooke’s note to CrotAvell AYas found, Avhich by consent Avas admitted in evidence. It was dated July 3, 1882, the day of the assignment of the judgment to him.

His honor, Judge Wallace, who heard the report of the master upon exceptions, confirmed said report, and made it the judgment of the court, holding that notwithstanding T. H. Cooke could not have brought the action himself, in vieAY of the fact that the evidence showed that he purchased the judgment for the purpose of bringing an action to set aside the deed attacked, Avhich Orotwell, the assignor, Avould not have done, and which, under section 2165, General Statutes, an attorney at law could not do; that section providing in substance, that an attorney of the court who shall buy any demand for the purpose of putting it in suit when the owner would not sue the same, shall pay a fine of one hundred dollars, and be incapable of practising in any court until restored by the Supreme Court — yet, that the plaintiff, “standing before the court as a bona fide holder of the judgment, could not be turned out of the court for a transaction for which he was not responsible under the statute.” He therefore, as stated above, confirmed the report and made it the judgment of the court.

The defendants’ exceptions on appeal raise three questions, 1st. That the assignment from Crotwell to Cooke was void. 2d. Being void, T. H. Cooke had no right to assign to his brother, the plaintiff. And, 3d. That his honor erred in holding that the 'plaintiff, H. P. Cooke, was a bona fide holder of the judgment without notice of the unlawful purposes and acts of his assignor.

As to this last point. This was a question of fact, depending upon the force and effect of the testimony. Upon examination of the evidence directed to this point we find no ground, under the law applicable to such questions, to disturb the finding of the judge. This exception is therefore overruled.

The plaintiff', then, being as a matter of fact a bona fide holder of the judgment without notice, if his honor was right in ruling that, notwithstanding the transaction between T. IT. Cooke and Crotwell may have been illegal, yet that this fact would not turn the plaintiff out of court, standing as such bona fide holder, then the appeal must be dismissed. The important, and in fact the only legal, question therefore involved in the appeal is, was his honor right in such ruling ? If he was, it could make no difference, so far as the rights of the plaintiff are concerned, whether or not the assignment of the judgment in question from Crotwell to T. H. Cooke was champertous at common law, or was in violation of section 2165 of the General Statutes, he being a bona fide holder without notice.

Having reached the conclusion that his honor was correct in his ruling, we have deemed it unnecessary to follow the argument of the appellants as to the effect of section 2165, General Statutes, supra, or of the common law, upon a transaction like that between Crotwell and T. IT. Cooke, by which it is alleged that the judgment in question was assigned by Crotw.ell to the said Cooke, and we have therefore confined ourselves in this opinion to the support of his honor’s ruling as to the rights of the plaintiff. It is admitted that the assigned judgment is a valid judgment, unpaid and indefensible. There is no inherent defect therein, like a gaming note, void wherever met (Mordecai v. Dawkins, 9 Rich., 262), or like an usurious contract, still usurious in whatever hands found (Martin v. Petit, 11 Rich. Eq., 416), and there is really no defence to the judgment.

But it is claimed that the plaintiff is not a legal holder thereof, because his assignor, T. H. Cooke, received no title from Crotwell, the transaction between them as to the said Cooke being, as alleged, in violation of section 2165, General Statutes, and champertous at common law, and this is the only defence.’ If the contest below was between T. H. Cooke and Crotwell as to the ownership of the judgment, or as to the enforcement of the agreement to assign, then the questions raised would be pertinent. But the judgment, it is admitted, was transferred from Crotwell to T. H. Cooke, and from the latter to the plaintiff, and Crotwell and Cooke are quiescent. Crotwell no longer claims the judgment, nor does T. H. Cooke. The plaintiff, however, claims it, and is in possession without protest or objection on the part of any one, and as a bona fide holder under what purports to be a regular and valid assignment, down from the original owner, and without notice of any taint in his title.

Now, can the judgment debtor, having no defence thereto, nor questioning in any way the validity thereof, or his heirs or representatives, under the facts of this case, resist the enforcement of said judgment, on the ground that the plaintiff has no title? If Crotwell was suing the plaintiff for this judgment, would not the title be adjudged, against him on the doctrine of estoppel ? However illegal it may have been for him to transfer said judgment to T. H. Co.oke, yet, having done so, and having remained quiet until Cooke had transferred it to an innocent and bona fide holder, would the court allow him even to offer testimony impeaching his transfer ? Would not the doctrine of estop-pel close the door upon any investigation preceding the act of transfer to the plaintiff, and make the plaintiff’s title complete ? We think so. And if the plaintiff would thus be protected against Crotwell or T. H. Cooke, equally so must he be protected as against these defendants. They have no defence to the judgment, and it can make no difference to them by whom it may be enforced, so that when enforced, it shall be done by one whose act will end and extinguish it. The Circuit Judge was right in holding that the plaintiff could not be turned out of court on the defences set up.

As this determines the case, we express no opinion as to the questions whether the purchase by T. H. Cooke of this judgment was in violation of section 2165, General Statutes; nor, if so, whether that fact would render said purchase absolutely void; nor whether said purchase was champertous at common law. These questions are not really involved in'the appeal, and it would not be proper for this court to prejudge them, when the parties most interested therein are not before the court.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.