
    State National Bank of St. Joseph, Defendant in Error, v. Charles G. Walser, Plaintiff in Error.
    1. Contracts — Judgment — Agreement to purchase — Release of judgment lien, effect of— Separation of judgment into parts. — In a suit on a written agreement to pay a certain sum for an assigned judgment, where there was no allegation of fraud, and the case was made to turn simply upon the existence or non-existence of a consideration for defendant’s promise, held, that the judgment being a valid and binding one, its transfer was a sufficient consideration for the agreement, although it appeared that prior to the transfer the assignor had released the lien of the judgment on certain real estate. And the fact that the agreement embodied an arrangement that defendant was to pay a certain proportion and other assignees the remainder, would not constitute an assignment of the judgment in parts.
    
      Error to Fifth District Court.
    
    Ledergerber, for plaintiff in error.
    
      Pike, for defendant in error.
   CuRRiER, Judge,

delivered the opinion of the court.

This suit is founded upon a written agreement by which the defendant, in consideration of the assignment to himself and others of a certain judgment, promised to pay to 'the plaintiffs a sum equal to two-fifths of the judgment assigned; the other assignees, by the same instrument, agreeing to pay the remaining three-fifths.

The answer admits the agreement and its execution, as alleged, but avers, in avoidance of it, that it was without consideration and void. This is the substance of the answer, although it goes into great detail in alleging the facts and circumstances which are supposed to result in the conclusion that the agreement ivas ineffectual for the want of a sufficient consideration to support it.

The pleadings show that the judgment assigned was rendered by the Buchanan Circuit Court, September 24, 1861, in favor of the plaintiffs, against J. C. Bnubidoux and others. No objection is urged against the validity of this judgment. The defendant, however, at the trial, offered evidence with a view to show that certain proceedings which were had in 1866 — T, for the purpose of renewing tbe judgment, were irregular and void; that the plaintiffs had released from the lien of the judgment a portion of a certain city lot, which was subsequently advertised for sale upon the renewal execution, and that the agreement sued on was executed on the day the sale was to have taken place; the defendant having, in the meanwhile, purchased from Roubidoux a portion of the land so advertised.

The court excluded the evidence as irrelevant to the issues of fact made by the pleadings, and properly. There was no allegation of concealment, misrepresentation, or of any form of fraud. The case, by the pleadings, was made to turn upon the “existence or non-existence of a consideration for the defendant’s, promise. The consideration shown was the transfer of a valid and binding judgment, and that was sufficient. The presence or absence of a judgment lien is immaterial.- It was not a lien, but the judgment rendered in September, 1861, that the plaintiffs engaged to assign, and which they(did assign, as the consideration for the defendant’s undertaking. ■ That was sufficient to relieve the contract from the imputation of being a mere nudum 'pactum.

There is no force in the objection founded upon the assumption that the judgment was divided and assigned to the several transferees in parts. ' There was no such division. The judgment was assigned in solido, the assignees agreeing to pay the amount specified in certain proportions ; the defendant’s proportion being two-fifths of the whole sum. The arrangement as to the mode and measure of payment constituted no separation of the. judgment into parts.

Judgment affirmed.

The other judges concur.  