Owen v. Moody

29 Miss. 79

• Court: Mississippi Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Mr. Chief Justice Smith

delivered the opinion of the court.

This suit was brought on a promissory note made payable to J. B. Clark, by Samuel B. Owen, the plaintiff in error. The payee died in 1852 at his residence in the State of Kentucky, having previously made his last will and testament, in which Andrew Shuck was appointed his executor, who proved the will in the proper court of Fulton county in said State, qualified as executor, and took out letters testamentary upon the estate. Afterwards, as alleged in the complaint, the executor indorsed and delivered the note in suit to the defendant in error. Owen demurred to the complaint, assigning several causes of demurrer. The only ground, however, relied on in the argument is, that the plaintiff below was neither vested with the legal title to the note, nor authorized to sue upon it in the State of Mississippi. The demurrer was overruled, and the defendant declining to plead further, judgment final was entered up against him, from which he sued out this writ of error.

It is well settled generally, and such seems also to be the doctrine in Kentucky, that the executor or administrator of a person to whose order a promissory note is^ade payable may transfer it, so as to enable the transferred or indorsee to maintain an action upon it in his own name. Stone v. Rawlinson, Willes, R. 559; 2 S. & M. 696; Harper v. Butler, 2 Pet. R. 239; 6 J. J. Marsh. 446; Story, Confl. Laws, p. 296, § 359.

The note under consideration not being payable to order, was not a negotiable instrument under the law merchant. But by the statute law of Kentucky, all bonds, bills, and promissory notes, whether for money or property, are made assignable, and the assignees are authorized to sue in their own names. Statute Laws of Kentucky, vol. 1, p. 150. No prescribed form of words is necessary in the transfer of an assignable note under the statute. Frankfort Bank v. Hunter, 3 Marsh. 292. It was, therefore, competent for the executor of Clark to assign the note in method adopted, that is, by indorsement; by which assignment the indorsee was vested with the legal title, and empowered to sue in his own name. But it is insisted, that the right of the indorsee to sue upon the note was confined to the juris.diction of Kentucky; that as the executor himself could not have sued upon the note in this State without taking out letters 'of administration here, he could not by assigning the note enable the assignee to do so.

The decisions on this question are not harmonious. The courts of Maine and New Hampshire maintain this proposition. Storrs v. Burnham, 5 Greenl. R. 261; Thompson v. Wilson, 2 New Hamp. R. 291. Whilst the converse is sustained by reason and the weight of authority. Robinson v. Crandal, 9 Wend. R. 425; Cope v. Daniel, 9 Dana, 415; Harper v. Butler, 2 Pet. 239; Andrews v. Carr, 26 Miss. R. 577; Story’s Confl. Laws, § 359, 517.

It is a principle of universal recognition, that a title to personal property, duly acquired under the lex loci rei sites, will be deemed valid, and be recognized as a lawful and perfect title in every other country. For example, if a foreign administrator has, in virtue of his administration, reduced the personal property of the deceased into his possession, and has acquired the legal title theréto according to the laws of that country, he may, if the property should be wrongfully taken out of his possession, sue for and recover the same in his own name and right personally, if found in another country, without taking out new letters of administration. Again, if a specific article of personal property is bequeathed in a foreign country, and the legatee there has under an administration acquired full possession and ownership, he may afterwards sue in his own name for any injury done to, or conversion of the property in another country, where the wrongdoer or the property may be found, without any probate of the will within that jurisdiction. Slack v. Walcott, 3 Mason, R. 508; Ballard v. Spencer, 7 Durnf. & East, 358; Commonwealth v. Griffith, 2 Pick. R. 11. This principle is entirely applicable to the case at bar. For negotiable securities, and the note in question was negotiable under the statute law of Kentucky, where the will was probated and the transfer made, are regarded somewhat in the light of chattels personal, rather than as choses in action, the absolute legal-title to which vests in the indorsee. McMilage v. Holloway, 7 Durnf. & East, R. 218; Story, Confl. Laws, p. 297, § 359. The defendant in error being vested with the absolute legal title to the note, was authorized to sue upon it in his name in the courts of this State.

Judgment affirmed.