
    Corbin v. Emmerson.
    March, 1840,
    Richmond.
    (Before a special court of appeals consisting of Bbooms and Cabisij,, judges of the court of appeals, and Scott, judge of the general court.)
    Assignments —Suit by Assignee — Parties—Assignor— Proof of Assignment. — In every case of a hill in equity asking relief for the plaintiff as assignee of the rights of another, the assignor must he made a party, and the assignment ought to he shewn and proved, though not denied, nor proof of it cajled for, in the answers; and the production and proof of the assignment can only he dispensed with hy the admission thereof hy the assignor and the parties againstwhom the relief is sought.
    James B. Burwell, late of Richmond county, by his will dated in September 1811, after devising to his uncle Bacon Bur-well part of his land and farm lying in the counties of Frederick and Berkeley, bequeathed to him one half of the personal estate on that farm (chargeable with ^1000. to be paid to the testator’s aunt Rachel Emmerson of Tennessee within two years after his decease) and to John R. F. Corbin all the remainder of his estate in those counties. The probat of the will being contested, Corbin was appointed, in November 1811, curator of the testator’s estate in Richmond, and Bacon ^Burwell curator of his estate in Frederick and Berkeley. But in March 1812, after the probat, administration with the will annexed was granted to Corbin, and he took possession of the whole of the testator’s personal estate. The wilt was the subject of controversy in the case of Burwell v. .Corbin, 1 Rand. 131-164, decided in April 1822, in which it was held, that it was not well proved as a will of real estate, leaving it as to the personal in full force.
    In June 1823, Thomas Emmerson, husband of the legatee Rachel Emmerson, brought a suit in the superior court of chancery of Richmond to recover, not his wife’s legacy of ^1000. but whatever should be found due to Bacon Burwell on account of the legacy bequeathed to him by the testator’s will as above stated, which the plaintiff claimed as the assignee of that legatee. The bill alleged, that Corbin, the administrator, had not accounted for and paid to Bacon Bur-well all that was due to him as legatee, had not returned a full and true inventory of the estate, had converted to his own use the profits of a large number of slaves which were part of the legacy bequeathed to Bacon Burwell, and had become wholly insolvent; and that Bacon Burwell had made an assignment to the plaintiff, of all his interest in the testator’s estate, particularly his claim for the profits of the slaves bequeathed to him, and had given the plaintiff an irrevocable power of attorney to sue for, collect and appropriate to his own use, whatever upon a full and fair settlement of the accounts should be found due from Corbin, the administrator, to Bacon Burwell, on account of his legacj', as (the bill said) would appear by the power of attorney now filed in the office of the court, which would be produced when necessary. The bill made Bacon Burwell, Corbin, the administrator with the will annexed, Tebbs and Settle, surviving sureties of Corbin in' his administration bond, and Beale and Christopher administrators of Turbeville*a deceased surety, parties defendant. And it prayed an account of Corbin’s administration, and especially an account of the profits of the slaves belonging to Bacon Burwell’s legacy, and a decree against Cor-bin and his sureties, for whatever should be found due from Corbin to the legatee.
    But though Bacon Burwell was made a party defendant, it did not appear that any process was served upon him, or that he ever appeared as a party in the cause: but he died pending the suit, and his administrator appeared as a party before the commissioner to whom the accounts were referred, and he afterwards consented in court to the recommitment of the report. And Bacon Burwell’s assignment to the plaintiff of his claim against Corbin, and irrevocable power of attorney to the plaintiff to sue for and collect the money due from Corbin and to appropriate it to his own use, though the bill referred to the instrument as filed in the office of the court, ready to be produced when necessary, did not appear by the record to have been in fact exhibited, nor was there any proof thereof.
    Corbin answered, that he had made and returned full and true inventories of his testator’s estate, which he exhibited: that in November 1818, a division was made by commissioners under a decree of the county court of Frederick, of all the slaves on the testator’s farm in Frederick and Berkeley, between Bacon Burwell and himself to whom the same were bequeathed, and he and Burwell, at the same time, divided between themselves all the other personal property on that farm; for proof of which he exhibited the report of the commissioners, whereby it appeared that about seventy slaves were allotted to Burwell: and, in regard to the profits, that many of the slaves having been in fact chargeable, and the defendant having, on his part, waived all charge for his commission and compensation *for his trouble, Burwell, on his part, had waived the account of the profits which his assignee now asserted. The defendants Tebbs and Settle, and Beale one of the administrators of Turbeville, put in their answers, in which, referring to Corbin’s answer, they controverted the right of Bacon Burwell, and consequently of the plaintiff, to call for an account of profits, or any other account.
    But neither in the answer of Corbin, nor in that of Tebbs and Settle, was the fact alleged in the bill, of Bacon Burwell’s assignment of his claim to the plaintiff, in any way denied, nor did those defendants call for proof of the assignment. And the answer of Beale did not deny the fact of the alleged assignment, or call for proof of it in any other way than by disclaiming, in general terms, all knowledge of the claims alleged in the bill.
    Christopher, the other administrator of Turbeville, did not answer, nor was there any process in the record whereby the cause was matured for hearing against him on his default. Yet the record shewed, that he in fact appeared by counsel, and joined in the defence: for he, with Tebbs and Settle, and his coadministrator Beale, filed exceptions to the first account of profits reported by the commissioner; and that account was recommitted, by consent of all the parties, including Christopher; and then, the counsel of all the parties, including Christopher, attended the taking of the account before the commissioner, which was finally reported, and was the foundation of the decree of the court.
    The defendant Corbin died pending the suit, and it was revived against his administrator. And the report of the commissioner to whom the accounts were referred, shewing a balance of 12977 dollars, with interest on 8291 dollars, part thereof, from the 1st September 1826, due from Corbin the administrator to the legatee *Bur-well, on account of the profits of the slaves from the year 1812 to 1818, during which time they were in Corbin’s hands; and there being no exceptions to this report ; the court, upon the final hearing, decreed that the defendants should pay the plaintiff, as assignee of Bacon Burwell, the above mentioned balance with interest &c.
    From which decree the defendants Beale and Christopher, by petition to a judge of this court, prayed an appeal; which was allowed.
    The cause was argued here by C. Johnson and G. N. Johnson for the appellants, and Beigh for the appellees.
    The main question, on the merits, was a question of fact depending on the evidence : Whether, at the time of the division between Corbin and Bacon Burwell in November 1818, Burwell waived and abandoned his claim to have an account of profits from Corbin, as Corbin alleged in his answer, and for the reasons and considerations therein stated?
    Supposing that Burwell did not abandon his claim to profits, there were many other questions of fact and of law, arising on the accounts, and the proceedings in the cause, which were argued at the bar; but of these questions it is necessary to mention only one, since the court decided no other — The counsel for the appellants objected, that there was no proof of the assignment by Bacon Burwell to the plaintiff of this claim of Burwell against Corbin; and that as the assignment was the whole foundation of the plaintiff’s claim to relief, proof of it was indispensable, even if Burwell had been regularly brought before the court; but though he was a necessary party, and though he was made a party by the bill, he never appeared, and no process was taken out against him. They cited Ray v. Fen-wick, 3 Bro. C. C. 25; Cathcart v. Lewis, 1 Ves. jun. 463; Purcell v. Maddox, 3 Munf. 79; Clark v. Bong, 4 Rand. 451; Tennent’s heirs v. Pattons, 6 Beigh 196, 207. *Beigh said, that none of the process had been inserted in the record, and for aught that appeared to the contrary, there might have been a decree nisi served on the defendant Burwell; but however that was, his administrator, after his death, was made a party, and he appeared. The fact of Burwell’s assignment of his claim to the plaintiff, was one in which none of the defendants but Burwell, and after his death his administrator, had any interest; and Burwell’s administrator made no complaint, and had not appealed from the decree. The decree would be a complete protection to the defendants whom it charged with the debt, against a claim for the same debt by the representative of the assignor; which was all those defendants could desire. The alleged assignment was not denied by any of the answers; nor was proof of it called for in any of them, unless the general disclaimer in Beale’s answer, of all knowledge of the claims alleged in the bill, could be supposed to call for proof of the assignment; but that was only a disclaimer of knowledge on the subject of Bur-well’s claims, not of his assignment of those claims to the plaintiff. It was obvious the court below proceeded on the supposition, that the assignment under which the plaintiff claimed, was unquestionable as it was unquestioned; and the omission to exhibit the instrument of assignment was the result of inadvertence, or, more probably, of the circumstance, apparent on the record, that the assignment ivas not a point of dispute between the parties. Therefore, if the court should reverse the decree for want of proof of the assignment, he submitted, that it ought to settle the other points in the cause, and then remand it in order that the plaintiff might have an opportunity of supplying the proof.
    
      
       Assignments — Suit by Assignee — Parties—Assignor —Proof of Assignment.-In this state it must he regarded as settled law. that in every case of a hill in equity asking relief for the plaintiff as assignee of the rights of another, the assignor must he made a party to the cause, and the assignment ought to he shown and proved, though the fact he not denied, nor proof of it called for in the answers. Lynchburg Iron Co. v. Tayloe, 79 Va. 675. 076, citing the principal case. Vance v. Evans, 11 W. Va. 382, citing the principal case as its authority, says that the general rule is, that where it is necessary to adjudicate the rights of an assignee, the assignor, or if he he dead, his personal representative must he made a party to the cause. As an exception to this rule, the court states the proposition laid down in James River, etc., Co. v. Littlejohn, 18 Gratt. 54. Nor this proposition, see next paragraph. See also, Jameson v. Myles, 7 W. Va. 811, 322, citing the principal case as holding that, in every case of a hill in equity, asking relief for the plaintiff, as assignee of the rights of another, the assignor must he made a party.' See also, foot-note to Richardson v. Davis, 21 Gratt. 709.
      Ip James River, etc., Co. v. Littlejohn, 18 Gratt. 82, it is said; “It is sometimes laid down, that to a hill filed hy the assignee of a chose in action, the assignor is in all cases an indispensable party. It was so said hy Judge Scott; delivering the opinion of a special court in Corbin v. Emmerson, 10 Leigh 663. But this language ought to he understood with reference to the case in which it was used. There was no proof of the assignment in that case; it was not before the court, and the court could not say, therefore, whether it was absolute and unconditional or otherwise. The want of proof of the assignment seems to have been the point mainly urged in the argument, and the authorities hearing on the necessity of making the assignor a party were not cited. That there are cases in which the assignor is not a necessary party to a hill filed hy an assignee, appears from Newman v. Chapman, 2 Rand. 93, which was not cited in Corbin v. Emmerson. 1 do not think, therefore, that Oorbin v. Emmerson, can he regarded as settling, that in all cases whatsoever the assignor is an indispensable party.” In this case it was held that, to a bill filed hy an assignee of a chose in action, if the assignment purports to transfer the whole interest of the assignor, and there is nothing in the pleadings and proof to induce the belief that it really did not do so, the assignor is not a necessary parts'. Nor other cases in accord with this decision, see foot-note to Zirkle v. McOue, 26 Gratt. 517.
      See further on this suhj ect, monographic note on “Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   SCOTT, J.,

delivered the opinion of the court — That in every case of a bill in equity asking relief for the plaintiff as assignee of the rights of another, the assignor *must be made a party to the cause, and the assignment ought to be shewn and proved, though the fact be not denied, nor proof of it called for, in the answers. The production and proof of the assignment can only be dispensed with by an admission of the fact by both the assignor and the parties against whom the relief is asked. Much more were the production and proof of the alleged assignment indispensable in this case, in which the assignor and his administrator, if the cause was regularly matured for hearing as to either of them at all, were in default; so that it cannot be pretended, that they or either of them admitted the assignment. This objection is fatal to the decree, upon the record as it now stands. But if this were the only error in the decree, the court, reversing it for this error, might remand the cause to the court of chancery, where the plaintiff might have an opportunity of producing and proving the assignment. The court has, therefore, examined the case upon the merits. And upon a view of all the circumstances of the case proved by the evidence, we are of opinion, that Bacon Burwell, at the time of the division between him and Corbin as legatees in 1818, waived, and intended to waive and abandon, all further claim against Corbin as administrator of his testator, on account of the legacy bequeathed to him, and especially all claim for an account of the profits of the slaves; and that, therefore, Burwell, if he had filed this bill himself preferring the claim on his own behalf, would not have been entitled to relief. Of course, the plaintiff, his assignee, is entitled to none. Therefore, the decree is to be reversed with costs, and the bill dismissed.

Decree reversed.  