Mims v. Armstrong

Alvey, J., delivered the opinion of the Court. This is an action for money had and received, instituted by the appellant against the appellees to recover money received by the latter in payment of a debt due them, alleged to have been assigned to the former by previous assignment of the debtor. At the trial there were four bills of exception taken by ⁹² the appellant; but if the rulings of the Court below on the prayers be sustained, it will be unnecessary to decide the questions raised by the first three exceptions. There were two prayers offered for instruction to the jury ; one on the part of the plaintiff, and the other on the part of the defendants.

That offered by the plaintiff was refused, and the one by the defendants was granted. The prayer of the plaintiff, which was refused, asked the Court to instruct the jury, that if they found the fact of the execution of the deed of assignment,, given in evidence, and that the defendants were creditors of McNabb, the assignor at the time of the execution of such assignment, and that Walker, the witness, obtained from Mc-Nabb certain money, as stated by him in his ■ evidence, and out of such money paid to the defendants the entire debt which McNabb owed to them ; and that the money which Walker so obtained from McNabb, belonged to McNabb, or was the proceeds of property which belonged to him at the time when he executed the deed of assignment ; then such money, by virtue of such deed, passed to the plaintiff, and he is entitled to recover from the defendants the amount which they so received from Walker, less the amount which they have paid to the plaintiff", with interest. By the granting of the defendants’ prayer, the Court instructed the jury, that by the deed offered in evidence, nothing was conveyed to the plaintiff by McNabb, except property enumei’ated in the schedule annexed thereto; and if the jury believed that all such property was received by the plaintiff, and that no part thereof, or its proceeds, was in the possession of the defendants when this suit was brought, then their verdict should be for the defendants. The deed referred to was an assignment by McNabb, a defaulting debtor to the plaintiff, as trustee, for the benefit of creditors; and the first and most material question ⁹³ is, whether the money alleged to have been received by the defendants, subsequent to the making of the deed, in discharge of their prior claims against McNabb, was part of the property conveyed by the deed of assignment to the plaintiff; for, if not, there is no color of right in the plaintiff to maintain the action, and it would follow necessarily that the Court was right in rejecting the prayer of the plaintiff", and in granting that of the defendants.

The deed, in its recital, states that McNabb, the assignor, “ is indebted to divers persons in divers sums of money, which, by reason of sundry losses and misfortunes, he has become unable to pay in full, and is desirous of providing for the payment thereof, as far as he can, in a just and equitable manner, by assignment of all his property and effects for that purpose.” And, in the granting clause, the property is described as “ all and singular his goods, chattels, promissory notes, debts, wares, merchandise, securities, and vouchers, for and affecting the payment of money, claims, demands, dioses in action, and property of every name and nature whatever, of and belonging to him, and which are more particularly and fully enumerated in the schedule hereto annexed,, marked Schedule A. To have and to hold,” &c. The schedule referred to is annexed to the deed, and was signed, sealed, and delivered by McNabb, in the presence of witnesses, and with all the formalities of the deed, and was duly proved and admitted to record with the deed, of which it formed part, according to the law of South Carolina. In this schedule, thus executed, the only money mentioned is the sum of $3,944.00, which is admitted by the plaintiff" came into his hands; and it is conceded that the money, $8,352.35, obtained from McNabb by Walker, under the circumstances detailed in evidence, and out of which the defendants’ claim was paid, is not embraced in the schedule. But it is contended that, notwithstanding ⁹⁴ this sum of $8,852.35 was omitted from the schedule, yet it passed to the plaintiff under the general and comprehensive terms used in the granting clause of the assignment, and that the defendants have no right to retain the amount received by them in discharge of their claim against McNabb.

Did the right to this money pass to the plaintiff under the deed? ¥e think, upon a proper construction of the instrument, it did not. It is now settled, by all the authorities upon the subject, that a schedule, executed and referred to as in this case, forms part of the deed; and that being so, the well-established rule of interpretation is applicable, that where general words are followed by a special clause, the latter will restrain and limit their operation. It is a general rule, regarded as well established even before the time of Lord Bacon, that where the instrument contains, in the first instance, a good and certain description of the thing granted, a subsequent mistake as to names, quantity, location, or some mere incident, will not be allowed to vitiate the grant. The subsequent mistaken description will be rejected upon the principle of falsa demonstratio non nocet.

But where the subject of the grant is first described generally, and afterwards a particular description is added, that will, if it can be reconciled to what precedes it, restrain and limit the operation of the more general words of description. Shep. Touch., 88; Com. Dig., “ Parols,” (A. 7, 8.)' Or, as the rule is stated by Lord Ellen-borough, in Conolly vs. Vernon, 5 East, 78, “ A circumstance mistaken and false will not frustrate the grant of particulars sufficiently once ascertained.

But here (in that case) the words first used are general words, not descriptive of particular things; and, according to Lord Hardwicks, in Gascoigne vs. Barker, 3 Atk., 9, ‘"Where a man does not make a certain definitive description, it is very difficult for courts of justice not to construe subsequent restrictive ⁹⁵ words as explanatory of the former.’ And this distinction is to be found in Dyer, 50, 5,” says Lord Ellenborough. In the grant before us the general descriptive words employed would certainly be sufficient, in the absence of any restrictive clause, to pass all the debtor’s property; but we must suppose that the grantor had a purpose in the more particular description which he thought proper to give in the schedule, and that that purpose was what he declares it to be, a more