Eckford v. Hogan

44 Miss. 398

• Court: Mississippi Supreme Court
• Decided: October 15, 1870
• Status: Published

Opinion

SlMRALL, J.:

Suit was brought in the circuit court of Lowndes county, by Hogan & Christian, as administrators of Harriet E. Hogan, deceased, against the plaintiffs in error, as makers of a promissory note for $9,703 04, dated December 3d, 1863, due 30th of April, 1865, payable to II. E. Irion, guardian for Bessie P. Irion.

Harriet E., the prayee of the note, married Hogan, and then deceased. The defendants pleaded that this note was the property of Bessie Irion, ward of the said Harriet E., and still a minor; and that at the death of said Harriet her powers as guardian ceased, and plaintiffs have no interest in the note to maintain the suit.

Replication to the plea was, that the note was given for a claim for the sale of the -property of the estate of McKinney Irion, jr., deceased, and came to said Harriet E., as his executrix, who took the note payable to herself as guardian, in contemplation of a future settlement in the probate court, but died before it was made. That she never reported the note as the property of said Bessie, or made any report or settlement in regard to the estate, but left said note to be distributed and dealt with according to the rights of parties entitled thereto. To the replication there was a demurrer, which was overruled, which is the first error assigned.

The general principle is agreed by counsel on both sides, that courts of law only take cognizance of the legal title ; that whether the suit be for the recovery of tangible property or dioses in action, the plaintiff cannot make for himself, a status ih a court of law, except he come with the legal title. The enforcement of equitable titles and interests belong to another tribunal.

In Dowell v. Brown, 13 S. & M., 46, the note, payable to order, was transferred by delivery, but after suit brought, was indorsed by the payee. It was held that this, did not cure the defect in the plaintiff’s title, for, as said, “he must have a legal right of action at the time he brings his suit.” It was then claimed that the plaintiff ought to have been permitted to put her note in evidence under the common count. This was denied, for, “ it would be a departure from principle to hold, that one who has the mere equity in negotiable paper, and cannot sue at law, may, nevertheless, sue at law in inde-bitatus assumpsit, and sustain his action by giving the instrument in evidence.”

So rigid is the rule, that it was said by the court, in Field v. Weir, 28 Miss., 67, that it was extremely doubtful whether a suit by the nominal plaintiff, and not for the use of one assuming to hold the equitable title, could be defeated by showing that the equitable title was in another. “ On the contrary, it has been holden that such defense was not maintainable,” (citing) McHenry v. Bidgly, 2 Scam, 308; Chadrey v. Lewis, 1 Gilman, 153.

In Carter v. Saunders, 2 How., 851, it was held that the note, payable to Saunders, “ administrator of the estate of B.,” was properly sued by Saunders individually, and judgment in his own right, Avas well rendered. So are the cases of Laughman v. Thompson, 6 S. & M., 259; Trotter v. White, 10 S. & M., 607, and Falls v. Wilson, 24 Miss., 168.

Cook et al. v. Rucks, guardian, 34 Miss., 106, does not militate against the cases cited, at least so far as the point under' consideration, is concerned. In that case suit was brought upon a written obligation, payable to said Hunter, guardian of the heirs of James Hunter, deceased, by James T. Rucks,. Who, upon the death of said Hunter, was appointed guardian.

The question was, whether Rucks could maintain the suit. Before entering' upon the reasoning, which conducted the court to the conclusion that Rucks could sue, they used this prefatory language: “We will not controvert the position that the suit might have been sustained by Hunter’s administrator, if, in fact, there is one.”

Where there has been an equitable assignment, a court of law will allow the assignee to use the name of the holder Of the legal title to sue for his use, and will not permit the suit to be controlled by the nominal plaintiff In this case there is no- controversy between the parties having the equity to the fund, and the plaintiff. There is no complaint or suggestion by them, that any improper use will be made of tile judgment or its fruits. And it' may be well brought into doubt whether the makers of the note, in a suit at law, mi the paper, can bring that subject into litigation for their defense.

We are well satisfied that the authorities which we have examined go to the full extent of sustaining the right of the plaintiffs to bring the suit, and there is' no error in overruling the demurrer.

The second error assigned, was striking' out the second plea. The plea presented no defense to the action, and was frivolous.

It was in testimony to the jury, that the original debt, for which the note was given, was due to McKinney Irion, jr., of whom, Harriet, his widow, was executrix, and that she never made an inventory, or any settlement in the pro.bate court, and that the will of her testator gave three-fifths of his estate to her, and two-fifths to his daughter Bessie, so that the plaintiffs, as administrators, represented three-fifths of the equitable interest in this debt. These plaintiff’s were ■ also administrators de bonis non of the estate of McKinney Irion, jr., and had reported this note to the probate court, as the property of the estate of said McKinney. Since the suit had been brought, E. S. Sykes has been appointed guardian for said Bessie, but he never had possession of the aiote, nor had it ever been passed or delivered to him.

We perceive no objection to this testimony. The records of-the probate court were competent to prove that the debt had been inventoried, and also, what had been, as well as what had not been done, by the said Harriet, as executrix and guardian. It was competent to prove the origin of the debt, and its novation into the note in suit, for the purpose of determining whether the debt ought, or not, to have been scaled, on account of the then depreciated currency ; for the I&e purpose, the testi naony of Harrison Crusoe was admissible.

The record is silent as to the grounds of the exceptions to the testimony of Christian. If it be that he was proving the contents of a paper, in the absence of the paper itself; if that had been stated as the reason, in the circuit court, the paper might have been produced. The paper itself, under the pleadings, was competent evidence, as tending to show the origin ©f the debt. We do not feel at liberty to say that the evidence was incompetent, because secondary, unless the exception in the .circuit court, was for that reason.

The law requires that the objection to evidence should be specific, so that the court of revision may understand precisely for what cause it was made. If it be that it is secondary, it should so appear in the record.

Where a witness, in the course of his narrative, states a number of facts and conversations, and the record shows a general objection to the whole body of his testimony, it would he going very far for this court to reverse because there were some matters deposed to which were inconpetent or irrelevant. Perhaps if the attention of the nisi jorjnig court had been specially directed to the objectionable statements, tbe remedy would have at once been applied.

The'instructions granted at the prayer of the plaintiffs, accord with the views hereinbefore expressed. Those which were asked for by the defendant are not in the record.

Wherefore, the judgment of the circuit court will be affirmed.