Andrews v. Carr

26 Miss. 577

• Court: Mississippi Supreme Court
• Decided: December 15, 1853
• Status: Published

Opinion

Mr. Justice FisheR

delivered the opinion of the court.

The court below sustained a demurrer to the declaration, from which judgment the cause is brought into this court by writ of error.

The suit is founded upon a promissory note made by the defendant to one Mary Duffey. She died in the State of Georgia, having first made her last will and testament, and appointed therein Samuel F. Duffey her executor. He proved the will in the court of ordinary of Butts county, Georgia, and qualified as executor. After • he qualified, the declaration states, that he “ transferred and assigned the note to the plaintiff, and then delivered the same.”

It is said that the plaintiff acquired by this transfer no legal title to the note.

1. Because an executor in Georgia could not make a transfer, so as to authorize the plaintiff to sue in this State.

2. That the words transfer and assign mean only a transfer by delivery.

The executor in Georgia held the legal title to the note, and had ample power to assign the same.

The words transfer and assign mean, in legal proceedings, if not otherwise restricted, a transfer by writing. The meaning of the words of course depend upon the connection in which they are used, and the subject to which they reláte.

When a man in pleading says that he has acquired a title by assignment, he is understood to mean a written assignment, unless he qualifies this meaning of the word.

The pleading is therefore sufficient; whether the plaintiff can sustain his averments by proof, is another question, and not now before the court.

Judgment reversed, and demurrer to declaration overruled, and cause remanded.