Simms v. Lawrence

9 Mo. 657

• Court: Supreme Court of Missouri
• Decided: January 15, 1846
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the Court.

Lawrenee, assignee of Josiah Burney-, sued Simms in a justice’s court, on a note executed by Simms to Burney, and assigned to Lawrence. On the trial in the circuit court, the note and the assignment thereon, were read in evidence, but no proof was made of the assignment. Simms objected to the reading of the assignment without proof «of its having been made, but his objection v/as overruled, and a verdict and judgment having been rendered against him, he sued out this writ cf error.

It is clearly settled, that under the statute, an assignment vests the title of the instrument in the assignee, and that the suit must be brought in his name. By the assignment the assignee becomes-the legal owner, and the assignment is the evidence of his right to sue. The assignment is no part of the instrument, and proof of its execution is not dispensed with, under the statute which exonerates a party from proof of the execution of the instrument which is the foundation of the action, until the execution thereof is denied, and the denial verified by affidavit. As the assignment was the foundation of the plaintiff’s tight to sue, proof of -its execution was indispensably necessary in ordf r to obtain a recovery.

The. other Juches concurring the judgment will be reversed, and the «cause remanded,