| Wis. | Jun 15, 1874
We think that the assignment contained in the bond does not; by its terms, transfer to the holder of the bond the note and mortgage offered in evidence. It describes instruments corresponding in some respects with those thus offered, but differing therefrom in the material particulars of date and time of payment. There is nothing in such description to show with any considerable degree of certainty that those securities were transferred, or intended to be, by such assignment. Had the time when, and the volume and page where, the mortgage intended .tó be assigned was recorded, been stated in the assignment, and did these agree with the mortgage offered in evidence, we might say, perhaps, that the latter mortgage was thereby transferred, notwithstanding the discrepancies in the description thereof. In such case it might be said, as was said in Paine v. Benton, 32 Wis., 491" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/paine-v-benton-6601246?utm_source=webapp" opinion_id="6601246">32 Wis., 491, that the points of correspondence were unmistakeable. But we have here no such test or evidence of identity. The fact that the note and mortgage, when offered in evidence, were attached to the bond in the manner stated, is not deemed important. It seems to us that it was incumbent upon • the plaintiff to aver and prove that there is a mistake in the description of those instruments, in the assignment, and that those offered in evidence were intended to be described therein and transferred thereby.
But it is claimed on behalf of the plaintiff, that her possession of the note and mortgage is prima facie evidence that she owns them, and that it is not essential to a recovery thereon that she prove an assignment thereof by the payee and mortgagee. We do not so understand the law. The note is payable to the railroad company or order, and is not indorsed. The law is, that no party, other than the payee, can recover upon the note, or obtain a judgment of foreclosure upon the mort
It should be observed that there is no general averment in the complaint that the plaintiff is the owner of the note and mortgage offered in evidence, but she claims to be such owner solely by virtue of the assignment contained in the bond, which, as we have seen, is not of itself sufficient to prove the fact. The omission to aver ownership distinguishes this case from that of Reeve v. Fraker, 32 Wis., 243" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/reeve-v-fraker-6601192?utm_source=webapp" opinion_id="6601192">32 Wis., 243. In that case the complaint contained a general averment of ownership, and it was held sufficient; but that the plaintiff must prove that averment (if it is denied) by other evidence than the mere possession of the note, is clearly indicated in the opinion prepared by Mr. Justice Cole. The necessity of averring ownership is asserted in Hays v. Lewis, 17 Wis., 210" court="Wis." date_filed="1863-06-15" href="https://app.midpage.ai/document/hays-v-lewis-6598986?utm_source=webapp" opinion_id="6598986">17 Wis., 210. Bedell v. Carll, 33 N.Y., 581" court="NY" date_filed="1865-09-05" href="https://app.midpage.ai/document/bedell-v--carll-3600788?utm_source=webapp" opinion_id="3600788">33 N. Y., 581, cited on behalf of the plaintiff, only holds that the possession of a promissory note payable to the order of the payee, and indorsed in blanlc ly him, is prima facie evidence of ownership. No case to which we have been referred holds that the mere possession, by any person other than the payee, of an unindorsed promissory note payable to order, is prima facie evidence of ownership.
For the reasonable protection of the defendants against another action, by-other parties, on the same securities, it seems to us that the complaint should aver that there was an error in the assignment, and that the note and mortgage offered in evidence were intended to be described therein and transferred thereby; and that such averments should be proved.
The foregoing views are decisive of this case, and necessarily result in the affirmance of the judgment of the circuit court. The plaintiff having refused to make the necessary amendment
It becomes unnecessary, therefore, to determine the effect of the variance between the note and mortgage described in the complaint, and those produced on the trial. It may properly be observed, however, that we perceive no very good reason why in this case an exception should be made to the general rule of evidence which requires that the proof shall correspond with the averment. We should hesitate to hold that the circuit court erred in applying the rule in this case.
By the Court. —Judgment affirmed.