Emmerson vs. Claywell, 14 B. Mon 18

Judge Crenshaw delivered the opinion of the court. The decisions referred to by the counsel of the appellants are based upon states of case different from that disclosed in the present controversy. In all the cases referred to by the counsel, it appears that the assignors of the title bonds, had an absolute right to tbe bonds, and a right to demand a conveyance, or compensation in damages from the obligors therein; and the responsibility of assignors in such cases, depends upon different principles, and the measure of recovery is governed by different criteria.

The title bond in this case had been executed to King, and assigned by him to free Billy, a man of color, as indemnity for a debt owing to him by King, and was, therefore, subject to be reclaimed and redeemed by King. Free Billy’s right to it, and the land it called for, was not absolute, but contingent, and all the subsequent assignees, with notice, took it subject to the equities of the original assignor, King. King applied to the chancellor, and by his decree, it was determined that he was entitled to the land for which the bond called.

It is made to appear, therefore, that what the assignment to Claywell purported to pass to him, to-wit: an indefeasible right to have from the obligors in the title bond a conveyance of the land, or compensation in damages, in his own right, for a failure to convey, did not pass to him. i* Anassigueither land or tho assignee for, band undertakes, bv tlTat^e aha°‘ná t0 P;!ss to what the as-pass", _*lie assignor right, there is a j^/p^ °fndgj,8 taking the mosignment^is “ade>^nd it is to show^tlie '.¡ght bjf suitlt it can be mania suit. Roberts ^ AgW^0(jj;f & roe’/210. ' 2.

The as-though receiving it edgethatanother person claim-cover’ Against his assignor, contract,hfie* agreed to nslc such third perKOn- We understand the doctrine to be, that an assignor , of a bond, either for money or land, undertakes, by implication, that he has aright to pass to the assignee what his assignment purports to pass.

If an absolute and unconditional assignment be made of a bond, either for money or land, the assignor, where there is no express stipulation to that effect, undertakes by implication, that he is the absolute and unconditional owner of the bond, and has an indefeasible right to demand what the bond calls for; and, if he has not such right, there is a breach of this implied undertaking, the moment the bond is assigned; and it is not necessary that this want. of right in the assignor, should be established by suit.

If it be as evident without a suit as with it, that a suit would be utterly unavailing, it is not necessary to prosecute it. Roberts v. Atwood, & Co., 8 B. Monroe, 210. It is made manifest by the suit of King v. Claywell &c., that had Claywell sued the obligors in the title bond, and obtained a conveyance, or damages for a failure to convey, it would have availed him nothing, as he would have held subject to the equity of King.

We think, therefore, that unless it had been shown that Claywell agreed'to take the assignmentof the defendants, risking the claim of King, he has shown a right to recover, notwithstanding he may have known that such a claim existed. The underfcaking of the defendants, by virtue of the assignment, is sufficiently comprehensive, to impose a responsibility against such claim, and, unless Clay well agreed to waive such responsibility, his right to recover is, we think, indisputably established, will not reverse and order a new where the verdiet of the jury, upon a question of fact, is thehevidence.by 4.

Where two persons own ests,oneathird, thirds61' in * the land called for title*1 an^unite in a joint asarl^ntlyVS b]e, f*01NtIie signee. B. and J., Monroe for plaintiff; Harlan, Bell and Craddock for defendants. Whether he did in fact, waive this responsibility, anq agree to risk the claim of King, was submitted to the consideration of the jury in the instruction given, and they were of opinion, there was no such risking bargain, and the testimony does not authorize this cour(; to say, that the jury were not authorized to come to such conclusion.

Tim objection taken, that, inasmuch as Emerson d ’ ’ and Hereford, appear by the assignments to them, to have had rights to different quantities of land, a joint suit cannot be maintained, cannot avail. They made a joint assignment, and their undertaking was, therefore, joint, and a suit against them jointly, was ProPer- It may be, that under the Code, separate judgments might have been entered, but there was no motion to this effect, and it was not error to render a joint judgment. Wherefore, the judgment is affirmed.