Love v. Fairfield, 13 Mo. 300 (Mo.)

Ryland, Judge,

delivered the opinion of the court:

The main question, from the above statement of the case, involves the right of a party to assign to another, a part of a judgment at law, can the payee of a chose in action, assign a part thereof to another, so as to effect the rights of the payer without his assent ?

The validity of an assignment of a part of a judgment, is a question, which was not passed upon by this court, in the case of Laughlin vs. Lisle and Edwards (8 Mo. Rep. 369) because it was not made. It did not occur to the court, that there could he any doubt about the right to assign apart as well as the whole of a judgment.

The words “part” and “whole” being terms familiarly used in mathe

matics, the mind too readily assented to the power or right of him to assign a “part,” who could legally assign the “whole,” without considering the consequences and legal bearing of this question.

Upon examination we find it asserted in several cases, and especially in the case of Mandeville vs. Welsh (5 Whea. 277,) that a couit of law will not interfere to protect a partial assignment of a chose in action. The reason for the distinction, as expressed by Judge Story in the case first cited is this : “a creditor-shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor; since it may subject him to many embarrassments and rssponsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignment, by which it may be broken into fragments, when he undertakes to pay an integral sum to his creditor, it is no part of his contract, that he shall be obliged to'pay in fragments to any other persons.”

A judgment so far as its assignable quality is concerned, is like any •other chose- in action. If the doctrine be applicable to the assignment of funds, either general or special, secured by simple contract specialty, negotiable or not negotiable, no reason is perceived why it does not extend to an assignment of a judgment. Every reason for the doctrine has as much application in the one case as in the other.

That such assignment may create equities between the immediate parties, the assignor and assignee is a matter not now important to en-quire into : but the original debtor, must be a party consenting to such arrangement, before he can be affected by it: If a part of a judgment can be assigned, we know of no point at which its divisibilty can be checked. It may be divided into numerous aliquot parts and each part, assigned to different individuals.

Would not this be a great inconvenience to the debtor, and one to which he cannot be subjected without his consent. We have not found any case in which a part of a judgment has been assigned, and therefore have found no decision directly upon the point. But is it not some evidence, that such a practice is not tolerated from the fact, that it seems not to have occured ? It is remarkable, that no case can be found tolerating such an assignment. This circumstance alone is calculated to make against the claim.

Choses in action were not assignable at common law; courts of equity however took charge of the interest of the assignee ; and then the courts of law, were forced to take notice of them.

But there is no policy in carrying the doctrine now held any further-

Said transactions at best, tend to promote litigation, to increase costs and to prevent the amicable settlement of disputes between the parties originally only concerned. It is the interest of the State that litigation should not be encouraged.

The great tendency to promote champerty and maintenance ; to prevent the parties themselves from mailing their own settlements of their disputes ; to increase the' number of suits, and to add to the burden of costs now sufficiently onerous already, have had much consideration with this court, in forcing us to the conclusion, that such partial assignment of a judgment, without the assent of the debtor shall not affect him.

From this view of the subject it will not be necessary for us to decide the question of notice of the assignment of part of the judgment to Messrs. Field and Hall, previous to the arrangement between Love and Fairfield by which the execution was ordered to be returned satisfied, and was so returned by the sheriff.

There is no pretence, that such assignment of a part of the judgment, was made by the consent of Love ; indeed there is very great doubt whether he knew any thing of such assignment before himself and Fair-field settled.

The judgment of the circuit court sustaining the motion of Field and Hall “to award execution on the judgment against said defendant and to vacate the entry of satisfaction on the execution by Fairfield” is erroneous, and the said motion should have been overruled.

The judgment of the circuit court is therefore reversed, and this cause is remanded to said circuit court, with directions to overrule said motion.