Miller v. Dugan

Beck, Oh. J.,

dissenting.— The facts upon which plaintiffs seek to recover in this action appear from the record to be substantially as follows: In 1864, a decree of foreclosure of a morrtgage upon certain lands was entered by the district court of Muscatine county against W. H. Miller and Rebecca S. Miller, at the suit of Thomas Dugan. The decree was entered upon default of the defendants, but the parties agreed upon the basis for the calculation of the amount due upon the mortgage ; the calculation itself was left to the clerk of the court who made a mistake of $1,219.61 thereon, and judgment was rendered for a sum greater by that amount than the sum actually due.

Dugan assigned all his interest in this judgment to Davidson, March 17, 1865, $1,008.33 having been paid thereon. $4,200 were paid to Davidson on the judgment, and he assigned all his interest therein to Jackson, February 19, 1868. The balance due on the judgment, $2,053, was paid to Jackson. These payments were made by plaintiffs. On the 13th day of May, 1869, Dugan, Davidson, and Jackson united in an instrument of writing assigning the judgment to plaintiffs. The amounts of the different payments, when and by whom made, are recited in this instrument, and it is therein rehearsed that plaintiff's, under these circumstances, are entitled to be subrogated to the right of plaintiff (in the decree) and assignees, and to hold the judgment with all its incidents and securities, instead and in the place of the judgment plaintiff and the said *440assignees thereof.” The words of transfer are these : “We * * * do hereby assign and transfer to the said John W. Miller and Charles S. Miller the said judgment with all its incidents and securities, and all our right, title and interest therein, without recourse on us or either of us.” The defendants in the judgment, W. H. and Rebecca S. Miller, instituted an action against the judgment creditor and all of the assignees, including plaintiffs, to correct the decree, and for other relief. Plaintiffs in this case failed to appear in that action, and a decree by default against them was rendered, whereby the judgment was so corrected as to cure the mistake therein. This was after the assignment to plaintiffs. The other defendants (Davidson, Jackson and Dugan being joined as such) demurred to the petition, and their demurrer was sustained and this action, as to them, was dismissed.

The foregoing are substantially all of the facts in the case; plaintiffs seek to recover from Dugan, Davidson & Jackson, who are joined as defendants in this action, the amount in which the judgment exceeds the true sum due upon the mortgage with interest thereon. We are required to determine, whether, upon these facts, plaintiffs are entitled to such relief.

I. It is important to settle in our minds the relation which the parties sustain to each other.

1. Plaintiffs are the assignees of the judgment, defendants the assignors. They have no other relation to each other. Plaintiffs do not stand in the place of the defendants in the judgment, and are clothed with no rights which they, at any time, possessed. The instrument transferring the judgment to plaintiffs recites that it is intended thereby that plaintiffs shall be subrogated to all the rights of the assignees thereof. These rights were to collect the judgment and enforce the lien, etc., and were acquired by the assignment.

2. The obligation and liability of plaintiffs’ assignors, and plaintiffs’ rights, as against them, are to be determined by the terms of the assignment. By these terms the interest of the several assignors in the judgment were transferred without recourse. By this transfer the assignors did not undertake to *441warrant the validity or value of the judgment, or to become liable for any diminution of interest which they claimed in the judgment. They did not become guarantors of the amount due or collectible thereon. The effect of an assignment of a judgment or chose in action of like character, by a transfer of the nature, is fully discussed in Scofield v. Moore, 31 Iowa, 241, and Wolcott v. Timberman, 28 id. 454. These cases fully support the conclusion I have just announced. It is not shown that either of defendants had a knowledge of the mistake, or were, in any degree, guilty of any fraud or deceit touching the same.

II. Plaintiffs, as they sustain no other relation to the defendants than assignees, must recover, if at all, as such, and upon the contract of transfer. But as we have seen, defendants are not liable as warrantors of the judgment, and cannot be held liable for any diminution in its value or failure of title or interest therein. Plaintiffs cannot, therefore, under the facts of the case, recover in this action.

III. Plaintiff’s condition is not changed, so far as this action is concerned, by the decree rendered against them in the suit brought by the defendants in the foreclosure decree. If those defendants were, in law, entitled to the relief they obtained therein it does not follow that defendants in this action are liable to plaintiffs. Defendants assigned the judgment without liability on account of any failure thereof. If for any reason the judgment, or a part thereof, cannot be collected, plaintiffs were, by the terms of the contract, to bear the loss and cannot look to defendants to make it good. If, therefore, the defendants in the foreclosure decree had a ground for relief against the judgment, plaintiffs cannot have recourse upon their assignors. As between the immediate parties to the judgment, it may be admitted that it was proper to correct the mistake. But by the assignment plaintiffs take the position of the original creditor, Dugan assuming his responsibilities as they do his rights; plaintiffs herein became plaintiffs in the foreclosure decree, so far as the rights of the defendants therein to any relief is concerned.

*442Defendants’ counsel insist that plaintiffs are precluded by the judgment rendered against them, and that the judgment in the same case discharging defendants is available as a defense in this action, I find it unnecessary to examine this position or discuss the questions growing out of it. The view above taken leads me to a satisfactory conclusion in the case.

IY. Upon a cursory view the positions I announce may appear to be in conflict with justice; a better consideration will lead to a different conclusion.' As it has been stated, the mistake occurred without the knowledge, fraud or fault of the plaintiffs in the judgment and neither of the other assignors of plaintiffs had any notice thereof. Now, suppose the plaintiff' in the judgment had transferred it in consideration of a payment made to him of one-half of the judgment; would it be just, under the contract by which he transferred it, to call upon him to make good to his assignee a deficiency on account of the mistake? No one will so claim. His rights are not affected nor are the equities of the case altered by the fact that he received the face of the judgment. The rights of the other assignors are the same and the like remarks apply to them. Again, suppose we should hold defendants liable to plaintiffs, what measure of recovery shall be fixed as against each ? Iam unable to answer this question, the record giving me no light thereon. We are required to decide the case upon the facts disclosed by the record, and should it appear that justice may be done between all the parties concerned in equity if plaintiffs recover in this case, we cannot, for that reason, hold defendants liable. This is a law action and the rules of equity, whose authority none of the parties have invoked, as they may be applied under an imaginary state of facts, must not shape our decision.

Suppose that instead of the mistake the case should be this: The judgment cannot be collected on account of the failure of the title to the lands mortgaged and the insolvency of defendants therein, which were unknown to both plaintiffs and defendants in this case. The loss would fall upon plaintiffs, for the simple reason that they had not, in the transfer which they *443took from defendants, protected themselves by requiring a proper warranty. No hardship or injustice would be seen in such a case. It is governed by no different rule than the case-made by the record before us.

In my opinion the judgment of the circuit court ought to be-

Affirmed.