(105 8.E.) commenced the plaintiffs made three assign- [ ments of their judgment, the first two being as security for debts, and the last to Margaret Kavanaugh, and, the record failing to disclose that Mrs. Kavanaugh knew of the assignment to her or that she had accepted the same, the order recited in the opinion was made, which states that it was not to be conclusive on the parties. In obedience to the order Mrs. Kavanaugh filed the following plea in the superior court: "Pursuant to the order of the Supreme Court made in this case, Mrs. Kavanaugh hereby comes into court and makes herself a party plaintiff herein, adopts the complaint heretofore filed herein, joins in the prayer for relief therein contained, and agrees to be bound by any judgment rendered herein by the Supreme Court. And the said Mrs. Margaret Kavanaugh hereby accepts the assignment of the judgment sued on in this action, and prays that she may be declared to be the owner thereof, subject to the previous assignments of H. L. Taylor and E. T. Cansler, if in law, equity, and good conscience she is entitled there to. Mrs. Margaret T. Kavanaugh, by H. L. Taylor, Attorney in Fact." The other assignees were made parties, and neither they nor the Charlotte Rapid Transit Company and Paul Chatham resist the prayer of Mrs. Kavanaugh to be declared the owner of the judgment subject to the prior assignments, and the defendants allege in their answer that she is the owner of the judgment. It appears, therefore, that no party to this action denies the allegation of Mrs. Kavanaugh that she is the owner of the judgment sued on, by assignment executed before this action was commenced, and this presents two questions for decision: (1) Can the owner of a judgment assign it and afterwards prosecute an action in his own name to enforce payment? (2) If not, can the assignee be made a party to an action instituted by the original owner after appeal to the Supreme Court and continue the prosecution of the action? 1. It was undoubtedly the doctrine of the common law that the assignment of a judgment, whether absolutely or as security, only passed the equitable and beneficial interest, leaving in the plaintiff in the judgment the legal title, but this legal title was not held for the benefit of the assignor, but to enable the assignee to bring an action in the name of the assignor to his own use. As said in Winberry v. Koonce, 83 N. C. 353: The assignor "occupies the relation of a sort of trustee in the sense of being bound to allow the use of his name in actions at law for their collection." The doctrine at common law and under modern authority is stated in 15 R. C. L. "At common law the effect of an assignment of a judgment was merely to transfer an equitable title, and the assignee was not permitted to bring an action thereon in his own name, but the assignee, by virtue of his equitable inof the judgment, and for that purpose to use terest, had the right to control the collection the name of the plaintiff, his assignor, and to receive the money collected. The general rule to-day is that an assignee of a judgment is the real party in interest in actions based upon such judgment, and may bring suit in his own name. made as collateral security for the payment of Where an assignment of a judgment has been a designated debt, the right of the assignee to sue is not impaired by the residury interest of the assignor, and the latter cannot bring suit, unless it be alleged that the assignee neglects or refuses to do so, under circumstances calculated to prejudice the right of the assignor." Our state, departing from the refinements and subleties of the common law, follows the modern thought in this particular and deals with the substance instead of the mere shell of a legal title. The statute (Revisal, § 400) provides that "every action must be prosecuted in the name of the real party in interest," and the court said in Moore v. Nowell, 94 N. C. 270, after holding that the assignee may maintain an action on the judgment in his own name: the complaint were assigned to the plaintiff in "The judgments mentioned and described in writing, for value, and he became the complete equitable owner of them and the 'real party in interest.'" This case was approved in Ricaud v. Alderman & Flanner, 132 N. C. 64, 43 S. E. 544, where it is stated that "It is well settled that a judgment is assignable, and that the assignee for value acquires all of the rights and remedies of the original plaintiff." (Italics mine.) It is therefore clear to me that the original plaintiffs cannot maintain this action because they parted with all interest in the judgment by assignment before the action was commenced. 2. The second question is answered by what is said in Bennett v. Railroad, 159 N. C. 347, 74 S. E. 883, which is quoted by Walker, J., in Reynolds v. Cotton Mills, 177 N. C. 425, 99 S. E. 240, 5 A. L. R. 284: "While courts are liberal in permitting amendments, such as are germane to a cause of action, it has been frequently held that the court has no power to convert a pending action that cannot be maintained into a new and different action by the process of amendment. Best v. Kinston. 106 N. C. 205; Merrill v. Merrill, 92 N. C. 657; Clendenin v. Turner, 96 N. C. 416. "In the last case it is said: "The court has no power, except by consent, to allow amendments, either in respect to parties or the cause action, as this would not be to allow an amendment, but to substitute a new action for the one pending.' If, however, the assignees could be substituted as plaintiffs, the statute of limitations is pleaded, and, as it would run against them until actually made parties, their cause of action would be barred by the statute of three years. in the bill of indictment, the first charging the transporting of liquor; second, the delivering of liquor in a quantity greater than one quart; third, the receipt of more than one quart of liquor during 15 consecutive days; and, fourth, keeping liquor in his possession for the purpose of sale. "Before the impaneling of the jury, counsel for the defendant moved to dismiss the I think the action ought to be dismissed. action for that all laws upon the statute BROWN, J., concurs in this opinion. (180 N. C. 744) STATE v. FORE. (No. 529.) books of the state of North Carolina referring to the manufacture, sale, and transportation of intoxicating liquors were repealed when the Eighteenth Amendment to the Constitution of the United States went into effect, said date being January 16, 1920, and this offense with which this defendant is charged having been committed since said (Supreme Court of North Carolina. Dec. 24, date, and this court therefore being without 1920.) 1. Intoxicating liquors 236 (7) Evidence held sufficient to sustain conviction for receiving illegally and keeping for sale. Evidence that defendant had fitted up his room for receiving liquor and keeping it for sale, and that when arrested he had more than a quart of whisky in his possession and several bottles, glasses, and jars, held sufficient, in the absence of explanation, to warrant the jury in finding that he was receiving liquor illegally and keeping it for illegal sale. 2. Intoxicating liquors 13 Prohibition amendment did not repeal state statute against keeping for illegal sale. The prohibition amendment to the United States Constitution (Const. Amend. 18), which expressly gives the states concurrent power with Congress to enforce it, did not repeal an existing state statute prohibiting the keeping of intoxicating liquor for unlawful sale, since that statute is not in conflict with the amendment, or with the national prohibition act, but is in aid of the purpose of both. 3. Criminal law 1177-Erroneous conviction under one count Immaterial if conviction under another sustains judgment. Where accused was convicted of illegally receiving intoxicating liquor and of keeping it for illegal sale, and the conviction under the latter count was sufficient to sustain the judgment, it is immaterial whether the statute on which the first count was based, and which per mitted limited possession, had been repealed by the prohibition amendment to the United States Constitution (Const. Amend. 18) and by the Volstead Act. jurisdiction." Motion overruled, and defendant excepted. The state offered the following evidence: W. H. Harris, a member of the police force of Asheville, testified: "That he had known the defendant for about day one year; that on the night of the of August, 1920, he arrested the defendant at a boarding house in the city of Asheville; that when he entered the room occupied by the defendant the defendant was on his bed asleep; that he found there about four pints of whisky, and some empty bottles, and a funnel; that there was also in said room an empty suit case on the floor close to the bed occupied by the defendant; that there were some empty fruit jars in the room, but that there had not been any whisky in the jars; that they were all empty quart jars; that the whisky was in a bureau drawer, also the empty bottles; that he knew of no sale of whisky being made by the defendant, nor had he seen the defendant offer any whisky for sale; that the defendant was partially intoxicated at the time of the arrest; that the total amount of whisky found in the room was about 31⁄2 pints and two empty pint bottles; that the defendant was in his sleeping room at the time of the arrest; that he smelt of the fruit jars; and that in his opinion there had been no whisky in them." R. H. Luther testified: "I went to his room with Mr. Harris, when the arrest was made. We found the whisky contained in the bottles offered in evidence and saw six or eight empty bottles and six or eight fruit jars in the room; also, a small whisky glass and a funnel. The fruit jars were at the foot of the bed in which the defendant was asleep. The whisky was in one of the drawers, which was about halfway open. The defendant was drunk or intoxicated when we found him on the bed. The defendant lives near Leiap-cester, about 10 miles from this rooming Appeal from Superior Court, Buncombe County; Long, Judge. Estie Fore was convicted of receiving and keeping liquor on hand for sale, and he peals. No error. The defendant was convicted of receiving and keeping liquor on hand for sale, and from the judgment upon such conviction appealed to this court. There were four counts house." At the conclusion of the evidence, the defendant moved for judgment of nonsuit upon the ground that there was no evidence to (105 S.E.) support either count in the indictment, which motion was overruled, and the defendant excepted. The jury returned a verdict of guilty on the third and fourth counts, and from the judgment pronounced thereon the defendant appealed. clude alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes,' with ex George S. Reynolds, of Asheville, for ap- ceptions not here material. By section 3 of the pellant. James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State. ALLEN, J. [1] The evidence is sufficient to sustain the verdict. The defendant lived 10 miles from Asheville, and he was occupying a room in a boarding house in Asheville, fitted up for receiving liquor and keeping it for sale. At the time of his arrest, he had more than a quart of whisky in his possession in several small bottles, a whisky glass, and a funnel, and empty bottles and fruit jars were found in his room. In the absence of explanation, the jury might reasonably and legitimately infer from these circumstances that the defendant was receiving liquor illegally and for an illegal purpose. The effect of the prohibition amendment and of the Volstead Act on state legislation is fully considered in the instructive and learned opinion by Rugg, Chief Justice of Massachusetts, in Commonwealth v. Nickerson, 128 N. E. 273, recently decided, from which we quote at length, preferring to do so, to presenting the thoughts and reasoning of the court in our own language, The defendant was convicted on the charge of selling liquor illegally in violation of a statute of the state, which the defendant insisted was superseded by the volstead Act. The court says: "The Eighteenth Amendment was proclaimed as having been ratified and thus became a part of the fundamental law of the land, on January 29, 1919. 40 U. S. Sts. at Large, 1914. Its first two sections, being the ones here pertinent, are in these words: on same title it is provided that 'no person shall or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end and that the use of intoxicating liquor as the penalty for a sale of liquor in violation of a beverage may be prevented.' By section 29 title 2 is for a first offense a fine of not more than $1,000 or imprisonment not exceeding six months, and for a second or subsequent offense a fine of not less than $200 nor more than $2,000 and imprisonment for not less than one month nor more than five years." ""7. The second section of the amendment (the one declaring, “the Congress and the several states shall have concurrent power to en"Section 1. After one year from the ratifi- force this article by appropriate legislation") cation of this article the manufacture, sale, or does not enable Congress or the several states transportation of intoxicating liquors within, to defeat or thwart the prohibition, but only the importation thereof into, or the exportation to enforce it by appropriate means. thereof from the United States and all terri- "8. The words "concurrent power" in that tory subject to the jurisdiction thereof for bev-section do not mean joint power, or require erage purposes is hereby prohibited. "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' "Congress, pursuant to the power conferred upon it by the second section of the Eighteenth Amendment 'to enforce this article by appropriate legislation,' has enacted the national prohibition law, being Act of October 28, 1919, c. 85, Acts Sixty-Sixth Congress, 41 U. S. Sts. at Large, 305, known as the Volstead Act. that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them, nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. 66 9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first sec"By title 2, § 1, of the Volstead Act it is tion, embraces manufacture and other intraprovided that 'the word "liquor" or the phrase state transactions as well as importation, ex"intoxicating liquor" shall be construed to in-portation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states, or any of them.' "By conclusion 10 the Volstead Act is declared applicable indifferently to the disposal for beverage of liquors manufactured before and after the Eighteenth Amendment became effective, and by conclusion 11 the declaration of that act that liquors containing as much as one-half of one per cent. of alcohol by volume and fit for use for beverage shall be treated as intoxicating was held to be within the scope of the Eighteenth Amendment." Concluding that the Supreme Court of the United States has not given an authoritative definition of the words "concurrent power," he discusses this question at length with full and interesting citation of authority: "This is the only instance to be found in the Constitution or any of its amendments where there is a definite declaration that both Congress and the several states have 'concurrent power to enforce' any constitutional mandate or power 'by appropriate legislation.' Certain powers are reserved to the states. Article 1, 88; article 10 of the amendments. Certain powers are prohibited to the states and certain other powers can be exercised by the states only by consent of Congress. Article 1, § 10. But in the Eighteenth Amendment alone is there express establishment of the existence of concurrent power in Congress and the several states to enforce by legislation its provisions. of state legislation respecting importation and exportation of intoxicating liquors, leaves open to state legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon congress with its accompanying implications, whatever they may be. "Having regard only to the words of the Eighteenth Amendment, the Congress and the several states are placed upon an equality as to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress, if in direct conflict with state legislation, becomes manifest. * "The amendment does not require that the exercise of the power by Congress and by the states shall be coterminous, coextensive, and coincident. The power is concurrent, that is, it may be given different manifestations directed to the accomplishment of the same general purpose, provided they are not in immediate and hostile collision one with the other. In instances of such collision the state legislation must yield. "We are of opinion that the word 'concurrent' in this connection means a power continuously existing for efficacious ends to be exerted in support of the main object of the amendment and making contribution to the same general aim according to the needs of the state, even though Congress also has exerted the power reposed in it by the amendment by enacting enforcing legislation opera"The words of the second section of the tive throughout the extent of its territory. Eighteenth Amendment are specific to the point Legislation by the states need not be identithat 'the Congress and the several states shall cal with that of Congress. It cannot auhave concurrent power to enforce this article thorize that which is forbidden by Congress. by appropriate legislation.' This phrase is sig- But the states need not denounce every act nificantly different from that found in corre- committed within their boundaries which is sponding sections of Amendments 13, 14, and 15. included within the inhibition of the Volstead In those three instances Congress alone is given Act, nor provide the same penalties therefor. power to enforce' 'by appropriate legislation.' It is conceivable also that a state may forbid Here the several states are joined with the Con- under penalty acts not prohibited by the act gress as depositories of concurrent legislative of Congress. The concurrent power of the power. It is reasonable to presume that this states may differ in means adopted provided it change in phraseology was adopted understand- is directed to the enforcement of the amendingly and imports an intention to effect a changement. Legislation by the several states approin substance and in scope of the power. Slaugh- priately designed to enforce the absolute proter House Cases, 16 Wall. 36, 74, 21 L. Ed. 394. It is hardly likely that, in an instrument of such transcendent importance as an amendment to the Constitution, the conjoining of Congress and the separate states as severally possessors of legislative power for enforcement of prohibition should under any circumstances be a barren grant or confer merely an insubstantial shadow upon either. The difference between the phraseology of the Eighteenth Amendment and that of the Thirteenth, Fourteenth, and Fifteenth Amendments in this particular, according to the common and approved usage of language, expressed a purpose to repose in the states a substantial power capable of some measure of effective exercise under all circumstances. The words of the amendment declare a complete possession of power by the states of which they cannot be deprived by Congress. The force and effect of the words of the Eighteenth Amendment, hibition declared by the Eighteenth Amendment is not void or inoperative simply because Congress, in performance of the duty cast upon it by that amendment, has defined and prohibited beverages and has established regulations and penalties concerning them. State statutes, rationally adopted to putting into execution the inexorable mandate against the sale of intoxicating liquors for beverage contained in section 1 of the amendment by different definitions, regulations, and penalties from those contained in the Volstead Act and not in conflict with the terms of the Volstead Act but in harmony therewith, are valid. Existing laws of that character are not suspended or superseded by the act of Congress. The fact that Congress has enacted legislation covering in general the field of national prohibition does not exclude the operation of appropriate state legislation directed to the enforcement by different means of prohibition within the ter (105 S.E.) "The power thus reserved to the states must be put forth in aid of the enforcement and not for the obstruction of the dominant purpose of the amendment." The court then discusses the power of the state under the amendment to enact legislation dealing with intoxicating liquors assuming that the view expressed as to the meaning of "concurrent power" may not be correct, and says: "The general principle as to the right of the states to exercise the power of effective legislation concerning subjects over which Congress also has power was stated in these words (summarizing language of Mr. Justice Story in Houston v. Moore, 5 Wheat. 1, at page 49, 5 L. Ed. 19) in Gilman v. Philadelphia, 3 Wall. 713, at page 730 (18 L. Ed. 96): "The states may exercise concurrent or independent power in all cases but three: (1) Where the power is lodged exclusively in the federal Constitution. (2) Where it is given to the United States and prohibited to the states. (3) Where, from the nature and subjects of the power, it must necessarily be exercised by the national government.'" 3. Evidence 121 (9) Declarations denying delivery at time of acknowledgment admissible as res gestæ. Then follows many illustrations from decided cases of the application of the principle that one may be guilty by the same act of a Where the grantee under a deed was relyviolation of a statute of the state and an acting upon presumption of delivery arising from of Congress, and concludes: acknowledgment and registration, declarations "In our opinion the irresistible conclusion by the grantors at the time of acknowledgment from these decisions is that state legislation that they did not intend to deliver the deed unwhich in its practical operation is appropriate til a condition was complied with are admissible to enforce the chief aim of the Eighteenth as part of the res gestæ of the acknowledgAmendment and to make it more completely ment, and in any event would be competent to operative in all its amplitude is not suspended, corroborate the testimony of one of the gransuperseded, set aside or rendered inapplicable tors in a subsequent trial of an action to set in its denouncements by the Volstead Act, in aside the deed. so far as not incompatible therewith or in contravention of its provisions." [2] The conclusions of the court are satisfactory to us, and, applying them to the facts in the record, we hold that the defendant has been properly convicted on the count charging him with having liquor in his possession for the purpose of sale, because the statute denouncing this as a crime is not in conflict with the amendment or the Volstead Act, and, on the contrary, is in aid of and carries out the purpose of both. [3] It is not so clear that the conviction on the count for receiving more than one quart of liquor in 15 days can be sustained, as the statute under which this count is framed permits the possession of liquor in limited quantities for beverage purposes, which may conflict with the Volstead Act; but it is not necessary to decide this question, as the verdict on the other count is sufficient to sustain the judgment. State v. Coleman, 178 N. C. 760, 101 S. E. 261. No error. Appeal from Superior Court, Cherokee County; Bryson, Judge. Civil action by J. M. Reece against Worth Woods to set aside a deed, tried before judge and jury. Judgment of nonsuit, and plaintiff appeals. New trial granted. The purpose of action is chiefly to have declared void and set aside a deed from W. L. F. Woods and wife to Worth Woods on the ground that said deed, though appearing on the registration book, was never in fact delivered. There are also allegations in the complaint that, the plaintiff being the real owner and in possession of the land, the defendant has wrongfully committed trespass thereon to plaintiff's damage. of the testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed. At the close J. H. McCall and J. N. Moody, both of Murphy, for appellant. Witherspoon & Witherspoon, of Murphy, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |