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a bond " pay the within contents to J H or order, value received." On this, as a bill of exchange, a South Carolina court maintained an action brought by the endorsee of J H against the obligee as drawer. Bay v. Freazer, 1 Bay 66.
When in 1794 the courts of that state passed upon the question whether an obligee who at the time of passing a bond, wrote his name on the back of it, was liable for the amount of it, if the obligor proved insolvent, it was stated that more money depended on the determination of this question than on any other before discussed in the state; bonds to the amount of several hundred thousand pounds sterling having been passed away since the peace. It is not to be wondered at that on such a question the judges were much divided in opinion. Three of them held that the judgment should be for the defendant. Parker v. Kennedy, 1 Bay 398. But two were of a different opinion. If the bond could not be recovered at the time it was passed, Waties, J., considered that the plaintiff had paid his money on a consideration which had failed and was entitled to recover it back on a count for money received. S. C. 422, 425. Bay, J. was of the like opinion. S. C. 429, 433; Hall v. Smith, 1 Bay 330.
These cases in South Carolina were followed by others in that state holding that no action lay against the assignor on the ground of the obligor's insolvency; that the assignment was no guarantee of payment unless the guarantee was express. Walker v. Scott, 2 Nott & M. 286, note; Twitty ads. Todd, 1 Id. 261; 2 Id. 285.
3. Statute of Maryland gives assignee right of action against assignor.
With respect to the liability of an assignor to his immediate assignee there was a statute in Maryland as far back as 1763, c. 23, under which if the assignment was sealed, the assignee having paid a consideration might resort to the assignor after using due diligence to recover the money from the obligor. Parrott v. Gibson, 1 Har. & J. 398; Boyer v. Turner's adm'r, 3 Id. 285. Though an assignee may not bring himself within that statute, there seem to be cases in which his right of action against his assignor is maintainable on common law principles. Crawford v. Bury, 6 Gill & J. 63; Lewis v. Hoblitzell's adm'r, Id. 259.
4. How right of action against assignor has been established in Virginia and Kentucky.
In Virginia the assignor of a lease may not be liable to re
store the purchase money to an assignee who is deprived of the leased premises. McClenachan v. Gwynn, 3 Munf. 558. But the assignee of a bond or writing such as is embraced in the statute cited ante, p. 262, stands on a different footing. The paper not being negotiable under the law merchant, the party transferring it by endorsement is not responsible as endorser of a bill of exchange; but he is responsible as assignor of a chose in action. Pitman v. Breckenridge &c. 3 Grat. 127. The principle on which this responsibility rests is well established.
The assignee having under the statute a right of action against the principal debtor, it is his duty to use due diligence to recover the money from him. If after using such diligence he fail to recover it from the principal, then though there may be on the assignor's part no undertaking to insure the payment other than what is manifested by the assignment, it is held in Virginia that on common law principles, the assignee may maintain an action against his assignor. Mackie's ex'or v. Davis &c. 2 Wash. 229.
Although a bond be for the purchase money of property, and a deed of trust be executed on that property to secure the same, and although at the time the bond is assigned, the assignee takes from the assignor a mortgage on other real estate by way of additional security to that afforded by the deed of trust, yet the assignment being for value received, will, in the absence of proof of an express agreement to the contrary, be regarded as importing a right on the part of the assignor to resort to the assignee for any part of the amount which he may be unable to collect from the obligors, if there be no want of proper diligence on the part of the assignee in pursuing his remedies against them. Peay v. Morrison's ex'ors, 10 Grat. 155.
In Kentucky it is considered that the law not only implies an assumpsit from the assignor to the assignee, to pay or refund the consideration of the assignment, should payment after due diligence not be obtained from the maker; but also implies a warranty on the part of the assignors as to the title of the note, and that it was valid, and given for a legal and sufficient consideration. Turneys v. Hunt &c. 8 B. Monroe 409.
5. Right of action rests on the ground of there being a valuable consideration for the assignment.
The right of the assignee to sue his assignor rests on the ground that there was in fact a valuable consideration for the
assignment. This fact does not necessarily result from the assignment. Hopkins &c. v. Richardson &c. 9 Grat. 492. But it is implied therefrom unless the contrary be shewn. If the consideration be valuable it matters not whether it be a previous debt, a present purchase or anything else. Lyons, J. and Fleming, J. in Barksdale v. Fenwick, 4 Call 505, 508; Tucker, J. in Goodall v. Stuart, 2 H. & M. 111.
Though it be shewn by the assignor that the consideration consisted merely in the assignee's parting with his property to, or discharging previous claims against, the maker or another, on the faith of the name and credit of the assignor, this consideration is sufficient to make the assignor liable for the amount of the note, if upon due prosecution of the remedy against the maker, the amount could not be made out of him; and the law implies a promise corresponding with this liabi lity. Allen v. Prior, 3 Mar. 305; Marcy &c. v. Fore, 3 B. Monroe 477; Marr v. Smith, 7 Id. 190; Hopkins &c. v. Richardson, 9 Grat. 493.
But if by an arrangement between the maker of the note and the creditor, to which the defendant was no party, (he being absent from the state,) the note was made payable to the defendant and delivered immediately to the creditor, and after the defendant's return to the state, and after the note became due, it was taken to him by the maker, endorsed by him in blank and returned to the creditor, then-though the endorsement may have been made for the purpose of securing the debt-it was an assignment without consideration, and the assignor not liable upon it, unless it was made in pursuance of a previous or present agreement, whereby forbearance of the debt was procured. Perrin v. Broadwell, 3 Dana 598.
6. How far consideration paid for the assignment is the measure of recovery against assignor.
In a case before the court of appeals of Kentucky it was stated that if the question as to the extent and terms of the liability of the assignor of a bond for land, were then an open one, to be for the first time settled, one of the members of the court would be strongly inclined to the opinion, that wherever it appeared that the substance of the transaction. between the assignee and assignor, was a purchase of the land, and not a mere purchase of the bond, for the purpose of speculating in the title, the assignor should be held responsi ble, in equity, for the entire consideration received for the land, in the event that the assignee, without fault on his part,
should be unable to coerce the title from the obligor in the bond; that if the assignor is in possession of the land, and delivers it, as well as the bond and assignment, these facts, or others equivalent to them, are sufficient, prima facie, to give character to the contract, as a sale and purchase of land, and to place the assignor's responsibility on the footing above indicated, without any other written evidence of the contract but an ordinary assignment; and that, under such circumstances, the assignee, upon failure of the title, has a right to be repaid the whole consideration, subject only to a deduction for any loss which may have been the consequence of his failure to prosecute the obligor with due diligence. Sebree's heirs v. Harper, 4 Dana 65.
But in the cases of Bedal v. Stith, 3 Mon. 290, and Tribble etc. v. Davis, 3 J. J. Mar. 636, 7, the contract has been placed on different grounds; and it is to be considered as the settled rule, applicable to cases of this kind, that, unless there be fraud in the representations of the assignor in regard to the title, or fraud or mistake in reducing the contract between him and the assignee to writing, or unless the assignor fails in his contract with the obligor, the responsibility of the assignor is limited in amount to the original consideration of the bond, and even to that extent, is dependent upon the double contingency, of the inability of the assignee, by use of the proper means, with due diligence, to coerce either the title or the original consideration money from the obligor.
If, therefore, the assignee of the title bond has a judgment. or decree against the obligors in that bond for the whole amount of their liability, and that amount is satisfied, the assignee has no right of action upon the assignment for the difference between the amount so recovered and the larger sum paid by him to the assignor; it is considered that in such case the consideration for the assignment has not failed but has, in fact, been enforced. Sebree's heirs v. Harper, 4 Dana 65.
The recovery by the assignee against the assignor being placed on the ground of a failure of consideration, the actual consideration of the assignment and its value constitute in other cases the measure of recovery. Metcalf v. Pilcher &c. 6 B. Monroe 530. It is so whether the claim against him be by his immediate assignee, or by a subsequent, claiming through the immediate, assignee; whether the instrument be passed by an assignment in full or by a blank endorsement; whether that blank endorsement be filled up as an assignment to the person with whom the assignor was in actual privity, VOL. II.-18
or filled up as an assignment to a stranger or third person. Reese v. Walton, 4 B. Monroe 511.
It results that if the consideration for the assignment was illegal or valueless the assignee can recover nothing from the assignor. Tucker v. Hall, 6 B. Monroe 460. In other cases the sum actually received by the assignor for his assignment fixes the extent of his liability when there is proof to shew what he received. In the absence of such proof it is presumed that he received an equal sum with that due upon the bond or note. Besides the sum received or the amount of the bond or note, as the case may be, the assignee also recovers against the assignor the costs of the suit against the obligor. Carrington, J. 2 Wash. 231; Fleming, J. 2 H. & M. 115; Stubbs v. Burwell, 2 H. & M. 540; Green, J. 5 Rand. 377; Tucker, P. 6 Leigh 397.
Such are the rules in the case of an ordinary sale and assignment of a bond or note. It is different in the case of an accommodation endorser, when the consideration of the endorsement is not money received by the endorser but money paid by the endorsee and received by others at whose instance and for whose use the endorsement was made. Such an endorser occupies the condition of other sureties who undertake directly for their principal, with this difference, that he undertakes to refund the endorsee his money upon the condition that he, by the exercise of due diligence, fails to collect the note from the maker. Clay v. Johnson, 6 Monroe 644; Smith v. Bacon, 3 J. J. Mar. 313; Hunt v. Armstrong's adm'r &c. 5 B. Monroe 401.
7. How contract of assignment may be modified. If the assignment be of a bond or note, on which nothing is due, how far assignor is liable.
The effect of an assignment may be modified by contract. Roane, J. in S. C. 230. Thus where a bond is disposed of, with an agreement that the party shall not be responsible, though he assign it in general terms, he will not be responsible in an ordinary case, not even to a subsequent assignee, having no notice of the agreement. Stubbs v. Burwell, 2 H. & M. 536. If, indeed, at the time of the assignment without recourse, the assignor inform the assignee that a defence of payment would be set up, but assure him that the note is unpaid except to the extent of the credits endorsed, the assignor will, in Kentucky, be held liable to the assignee if the note had in fact been paid to the assignor. Woolfolk v. McDowell, 9 Dana 270. And in Virginia, though a person