Judson v. Corcoran. 17 H.

by the board of commissioners to be the legal owner of the amount awarded; and as legal owner Corcoran is sued.

In regard to the preliminary questions raised at the bar,

it may be remarked that we have no doubt the district [614] court had authority to hear and determine the equities of

the parties, notwithstanding the judgment in Corcoran's favor by the board of commissioners. The question that an award like the present is not conclusive among adverse claimants, was settled in the case of Comegys v. Vasse, 1 Pet. 193, in 1828, and has not since been open.

And as respects the validity of assignments of claims like the one here presented, no question can be raised at this day, as such assignments have been recognized by the various boards of commissioners and the courts of justice for many years. The case of Comegys v Vasse, also adjudged this point.

The contest here depends on the merits. Judson had the earliest assignment of part of the amount declared to be due to Williams, by the two United States commissioners, in 1842, to the extent of $6,000, and the claim assigned being a right depending on an equity against the government of Mexico, and assuming that both sets of assignments are alike fair, and originally stood on the same bona fide footing, the rule of necessity is, that the assignor having parted with his interest by the first assignment, the second assignee could take nothing; and, as he represents his assignor, is bound by the equities imposed on the latter; 1 White and Tudor's Eq. Ca. 236; and hence has arisen the maxim in such cases, that he who is first in time is best in right. But this general rule has exceptions, and the case before us was obviously decided in the court below on an exception to the general rule.

Judson took his assignment in January, 1845, which he first produced in May, 1851, when this bill was filed. In the mean time Corcoran had got his assignment, and immediately gave written notice of it to the department of state, and August 17, 1847, received an answer from the secretary, recognizing the fact of notice having been received, and that it was filed with the docume. ts of the postponed claim of Williams and Lord, appertaining to the unfinished award.

Corcoran's assignment was fair, and accepted on his part without knowledge of Judson's; nor is the contrary alleged in the bill. And assuming Judson's to be fair also, and that no negligence could be imputed to him, then the case is one where an equity was successively assigned in a chose in action to two innocent persons, whose equities are equal, according to the moral rule governing a court of

Judson v. Corcoran. 17 H.

chancery. Here, Corcoran has drawn to his equity a legal title to the fund, which legal title Judson seeks to set aside, and asks an affirmative decree in his favor to that effect.

Now nothing is better settled than that this cannot be done. The equities being equal, the law must prevail.

[* 615 ]

There are other objections to the case made by the appellant, growing out of negligence on his part in not presenting his assignment and claim of property to the state department, so as to notify others of the fact. The assignment was held up and operated as a latent and lurking transaction, calculated to circumvent subsequent assignees, and such would be its effect on Corcoran, were priority accorded to it by our decree. It is certainly true, as a general rule, as above stated, that a purchaser of a chose in action, or of an equitable title, must abide by the case of the person from whom he buys, and will only be entitled to the remedies of the seller; and yet, there may be cases in which a purchaser, by sustaining the character of a bona fide assignee, will be in a better situation than the person was of whom he bought; as, for instance, where the purchaser, who alone had made inquiry and given notice to the debtor, or to a trustee holding the fund, (as in this instance,) would be preferred over the prior purchaser, who neglected to give notice of his assignment, and warn others not to buy.

The cases of Dearle v. Hall, and Loveridge v. Cooper, 3 Russell's R. 1, 60, established the doctrine to the foregoing effect in England; they were followed in the case of Mangles v. Dixon, McNaughten and Gordon's R. 437. And the same principle of protecting subsequent bona fide purchasers of choses in action, &c., against latent outstanding equities, of which they had no notice, was maintained in this court in the case of Bayley v. Greenleaf, 7 Wheat. 46. That was an outstanding vendor's lien, set up to defeat a deed made to trustees for the benefit of the vendees' creditors. The court held it to be a secret trust; and although to be preferred to any other subsequent equity unconnected with a legal advantage, or equitable advantage, which gives a superior claim to the legal title, still, it must be postponed to a subsequent equal equity connected with such advantage.

The rule was distinctly asserted by Chancellor Kent, in 1817, in Murray Lylburn, 2 Johns. C. C. 442, before the question was settled in England, and before this court discussed it, which was in 1822. And the same principle was applied by the court of appeals of Virginia, in the case of Moore v. Holcombe, 3 Leigh's R. 597, in 1832. Secondly. There is no satisfactory evidence, as we apprehend, to establish the fact that a sufficient consideration was paid by Judson

Lewis v. Bell. 17 H.

to Williams for the assignment on which the bill is founded, to au thorize Judson to set it up, and thereby to postpone Corcoran, who paid a full price, as did those under whom he claims; yet as these objections depend on facts peculiar to this cause, we deem it useless to critically investigate them, as the decree below dismissing the bill was clearly proper, on the first and merely legal ground. *It is ordered that the decree be affirmed.

1 Wal. 604.

[ * 616 ]

MARY LEWIS, Administratrix of STEPHEN J. LEWIS, deceased, Appellant, v. EDWARD R. BELL, Assignee of I. BELL, JUNIOR.

17 H. 616.

An assignment of a chose in action, by a father to his son, is not subject to the objection of champerty.

An assignment of a chose in action " in consideration of one dollar, and divers other good considerations," when attempted to be impeached by the representative of the assignor, may be supported by evidence of valuable and adequate consideration.

APPEAL from the circuit court for the District of Columbia. The case is stated in the opinion of the court.

Chilton and Lawrence, for the plaintiff.

Bradley, contrà.

GRIER, J., delivered the opinion of the court.

The subject-matter in dispute in this case is a sum of money in the hands of the secretary of the treasury, which had been awarded to the appellant by the commissioner appointed under the act of congress to adjust claims under the treaty between the United States and Brazil. Stephen J. Lewis, deceased, is admitted to have been the original owner of the claim. He was owner of one fifth of the brig Caspian, which was illegally seized by the Brazilian squadron, in October, 1827, and condemned. Lewis was on board at the time, and was robbed of his baggage and money to the extent of some four thousand dollars. The whole amount awarded on these claims of Lewis, was $11,551.

Isaac Bell, senior, the father of the appellee, had an assignment of this claim from Lewis, by deed of assignment, dated November, 1828.

The claim was prosecuted to its final recovery in 1852, by Isaac Bell. But having in the meanwhile lost or mislaid his original

19 Stats. at Large, 422, 606.

2 Ibid. 971.

Lewis v. Bell. 17 H.

[ * 617 ] * deed of assignment, and not having sufficient legal proof of the copy, the commissioner awarded the money to the administratrix of Lewis.

Isaac Bell, Senior assigned his right to his son, Isaac Bell, Jr., and he soon after assigned to his brother, the appellee, who instituted this proceeding in the circuit court of the District of Columbia under the provisions of the act of congress of July 3, 1852.1

After the institution of this suit, the original assignment was accidentally discovered, and has been satisfactorily proven. The court below awarded the money to the complainant below, and the administratrix of Lewis has taken this appeal.

The objections to the title of Edward R. Bell, as champertous, collusive, and fraudulent, and made for the purpose of using the father as a witness, are wholly unsustained by any evidence.

There is no principle in equity which prevents a creditor from assigning an interest in a debt, after institution of a suit therefor, as being within the statutes against champerty and maintenance; see 2 Story's Eq. 1049, 1054; nor will the want of a full money consideration, as between father and son, and brother and brother, subject the transaction to such imputation, without further proof. The father's testimony was not offered by the appellee in this case; we are not, therefore, bound to notice the question of its admissibility, or the policy of permitting assignments for the purpose of making the assignor a witness, on which so much of the argument of this case was expended.

It is contended, also, that the assignment of Lewis to Bell, senior, is not absolute, but a security only, of some debt which has been satisfied; and that it is voluntary, and imports a trust between the parties.

The deed of assignment, after a recital of the capture of the brig Caspian, and the claim preferred by the American minister at Brazil, on behalf of Lewis, for indemnity, proceeds as follows:

"Now, know all men by these presents, that the said Stephen J. Lewis, for and in consideration of the sum of one dollar, lawful money of the United States, to him in hand paid by Isaac Bell, of the city of New York, merchant, the receipt whereof is hereby acknowledged, and also for divers other good considerations him thereunto moving, hath granted, bargained, and sold, assigned, transferred, and set over, and by these presents doth grant, bargain, and sell, assign, transfer and set over, unto the said Isaac Bell, his executors, administrators, and assigns, all and singular, the said claim, and all

110 Stats. at Large, 11.

Lewis v. Bell. 17 H.

the sum and sums of money that may be recovered or received, of and from the said Brazilian government, or of and from whomsoever it may concern, for or by reason of the said illegal capture,

or which may arise from the proceeds of the said brig [* 618 ] Caspian and cargo; to have and to hold the same and every

part and parcel thereof, unto him, the said Isaac Bell, his executors, administrators, and assigns, forever," &c., &c.

This is an absolute assignment of the whole claim of Lewi against the Brazilian government. Besides the consideration of one dollar, it mentions "divers other good considerations," without specifying them particularly.

The bill alleges that the real consideration was a large indebtedness of Lewis to Bell, which was never paid, Lewis having died in 1844, insolvent. This is denied by the answer. But the evidence, as far as it affects the point, tends to establish the correctness of the allegations of the bill. After the assignment, Lewis does not appear to have interfered in the prosecution of this claim, up to the time of his death, in 1844, nor did his administratrix set up a claim till the money was recovered, in 1852.

In December, 1828, it appears that Bell transmitted this assignment to his agent in Buenos Ayres, in order to prosecute the claim, alleging that the "assignment was made by Lewis, in consequence of advances made to him in the purchase of a brig and cargo." In the same year, he wrote to the Hon. Henry Clay, inclosing the protest of Lewis, in order that our government might be led to urge the payment of his claim, and alleging as the reason of his interference, that Lewis was indebted to him in the sum of $15,000, and had failed, and had therefore made him the assignment now in question. In a letter from Bell to Mr. Cambreling, in 1830, urging his interference in behalf of the Lewis claim, Bell assigns as the reason for his request, that Lewis had become indebted to him, and had no other means of payment but through that claim; and to confirm the whole matter beyond dispute, the counsel of the respondent below (now appellant) read in evidence the testimony of Isaac Bell, senior, proving the assignment to have been made in consideration of large indebtedness by Lewis to Bell, and that Lewis was then insolvent, and continued so to the time of his death. By their own showing, therefore, there is ample consideration for the assignment, and not the least evidence of a secret trust.

The decree of the circuit court is, therefore, affirmed.