Guptill v. Horne

63 Me. 405

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Appleton, C. J.

This is an action of assumpsit on a note signed by the defendant and payable to the order of Clarilda A. G-uptill, and by her assigned and delivered to -the plaintiff before her intermarriage with the defendant and subsequently indorsed by her.

No question is raised as to the sufficiency of the consideration of the note or of its assignment.

The note having been assigned by delivery the equitable title thereto passed to the assignee. The assignor henceforth ceased to have any control over it. Having transferred it, she was bound to do whatever was necessary to protect the assignee in the enjoyment of his property. He had a right to sue the note in her name and in case of the satisfaction of the judgment by a levy, a court of equity would compel her to execute a release of the estate upon which the execution was extended.

In the ease at bar the subsequent marriage of the assignor with the maker of the note prevented the bringing of a suit in her name. But the husband acquired no right in, or control over the note by such marriage. Nor was the assignee without remedy. When by mistake, accident or fraud an assignment of a negotiable note is made without indorsement a court of equity will compel the assignor to do whatever may be necessary to render the assignment available to the assignee. “When a note,” remarks Lord Eldon, in Walton v. Maule, 2 Jac. and Walk., 237, “is handed over for a valuable consideration, the indorsement is a mere form; the transfer for consideration is the substance ; it creates an equita- „ ble right and entitles the party to call for the form. The other is bound to do the formal act in order to substantiate the right of the party to whom he has transferred it and he is bound to do it.” Thus in ex parte Mowbray, 1 Jac. and Walk., 148, the assignees in bankruptcy were ordered to indorse a note assigned by delivery before bankruptcy — but without personal liability. This equitable right attaches at the time of the transfer by delivery.

As the wife could have been compelled by a court of equity to indorse, her voluntary act is as effectual to transfer to the indorsee the legal right to sue as if. it had been the result of legal compulsion.

But by the statutes of this State, c. 61, § 4, the"wife is liable for any debt created for “any lawful purpose.” If liable as indorser or surety upon any contract of indorsement or suretyship, much more may she perform the merely clerical act of indorsement. Mayo v. Hutchinson, 57 Maine, 546.

The amendment of the writ by substituting 1873 for 1872, was properly allowed. It was made to correct an obvious mistake. Barker v. Horton, 17 Maine, 416. Exceptions overruled.

Walton, Dickerson, Barrows, Virgin and Peters, JJ., concurred.