| Ill. | Apr 15, 1863
delivered the opinion of the Court:
This court has repeatedly held, that the party having the legal title must sue in his own name. It may, in fact, be •regarded as the settled doctrine of the court. McHenry v. Ridgley, 2 Scam. 310; Campbell v. Humphries, id. 478. The doctrine has been uniformly maintained and generally acquiesced in for such a length of time, that it should not now be disturbed. As far as the interest of the debtor is concerned, it matters little in whom the equitable or beneficial interest may be vested. That is a question between the holder and beneficiary. The rule is equally well recognized, that the legal title to an instrument must be vested in the plaintiff at the time suit is instituted. Where a party, by purchase and delivery, has acquired' a note by a general assignment, and sues upon it, it is held that he may fill in the indorsement to himself at any time previous to reading it in evidence on the trial. But if the legal title is vested in another when suit is commenced, the plaintiff cannot afterwards invest himself with the legal title, so as to maintain the action. Porter v. Cushman, 19 Ill. 572" date_filed="1858-04-15" court="Ill." case_name="Porter v. Cushman">19 Ill. 572; Moore v. Maple, 25 id. 342.
A party holding a bill or note with a general assignment, is presumed to be the legal owner of the instrument, and may fill the indorsement to himself at any time. But when the indorsement is special, he has no right to strike it out and write another to himself, over the name of the assignor, because the legal title had already vested in the assignee named in the indorsement thus stricken out. But in any event, the defendant has the right to have a judgment rendered against him in favor of the legal holder, so as to become a bar to a future recovery on the same instrument.
In this case the assignment seems to have been complete, and the legal title to the note vested in" the plaintiff at the time this suit was instituted. It is not a question that affects the rights of these parties, whether any or what consideration was paid for the note by plaintiff below. The equities between the defendant in error and his assignor, do not concern the plaintiff in error. It appears, from the evidence, that the payee sold the note to Orrin Miller, and indorsed it in blank and delivered it to him. This was proof of title in Miller, or any person who afterwards became the holder by purchase or delivery from the holder. The assignment was filled up with Miller’s knowledge and consent, and was properly received in evidence.
There were several pleas of an entire failure of consideration of the note filed by the defendant below. To these pleas there were replications, and issue to the country. On the trial it appeared that the note was given for the purchase of a growing crop, on the farm of plaintiff in error, and a house and sheds, with their appurtenances, which had been erected by the payee or his father. The evidence also all shows that the payee and his father appropriated to their o»wn use the greater part, if not all, of the crops, without the consent of plaintiff in error. If these crops of grain had been the only consideration, the defense might have been complete; but the house, sheds and appurtenances, entered into, and formed a part of the consideration of the note. There is no evidence that plaintiff in error did not receive them, and if so, he received a consideration to that extent, that has not failed. As they were improvements of a permanent character, becoming a part of the real estate by their erection, and being on his land, the presumption is, that plaintiff in error has received them, and is in their enjoyment.
It is a familiar rule of practice, that the allegation and proof must agree. Row, in this case, the pleas set up one defense, and the proof establishes another. The statute has given them as separate and entirely distinct defenses, and to be rendered availing, under the practice in this State, they must be relied upon as separate defenses. These pleas not being sustained by the evidence, the verdict was warranted, and the judgment of the court below is affirmed.
Judgment affirmed.