Cottrell v. Smith

112 So. 465 | Miss. | 1927

^* Corpus Juris-Cyc References: Bills and Notes, 8CJ, p. 822, n. 88, 91; Equity, 21CJ, p. 311, n. 31; Limitation of Actions, 37CJ, p. 1067, n. 81. This is a suit upon a promissory note executed by the appellant to the Mary Mac Plantation Company. It was begun in the circuit court, and transferred therefrom to the court below. The suit is upon a purely legal demand, and why the cause was transferred to the court below is not apparent, and is not here material. The original bill was by the complainant, in his own name, without disclosing any beneficial interest in the note in the Mary Mac Plantation Company. The appellee, by answer and cross-bill, challenged the appellant's ownership of the note, and alleged that the real ownership thereof was in Kenneth Stevenson, president of the Mary Mac Plantation Company, and set forth a defense thereto against Stevenson. Before the cause came on for trial, Cottrell's deposition was taken, and it appeared therefrom that he had no beneficial interest in the note, but that it was assigned to him for a mere nominal consideration, and that he was to account to the Mary Mac Plantation Company therefor when collected. The assignment was not by an indorsement on the note, but was by a separate instrument, which reads as follows:

"That the Mary Mac Plantation Company of Tennessee, in consideration of the sum of one dollar and other good and valuable consideration to it in hand paid by Edward T. Cottrell of New York City, the receipt whereof is hereby acknowledged, has sold, assigned, transferred and set over, and hereby does sell, assign, transfer and set over, to the said Edward T. Cottrell, his executors, administrators and assigns, the promissory note of Archibald Smith to said Mary Mac Plantation Company of Tennessee, a copy of which is hereto annexed, together with any and all moneys due and to grow due thereon, hereby giving and granting to said Edward T. Cottrell full power and authority to collect, demand, receive, and give good and valid acquittances therefor as against it and its name or otherwise to sue therefor."

When this deposition came in, Cottrell, by leave of court, over the objection of the appellee, amended his bill of complaint by adding thereto, after the designation therein of Cottrell as the complainant, the words, "and who sues for the use of Mary Mac Plantation Company of Tennessee, a Tennessee corporation." This amendment to the bill of complaint was made more than six years after the maturity of the note sued on. The appellee then pleaded the six-year statute of limitation, and a demurrer thereto, by the appellant, was overruled, and the bill was dismissed on the ground that the amendment set forth a new cause of action that was barred by the statute of limitations.

The legal title to the note was in Cottrell, and he had the right to sue thereon in his own name. Section 717, Code of 1906 (section 496, Hemingway's Code); Jenkins v. Sherman, 77 Miss. 884, 28 So. 726; Griffith's Miss. Chancery Prac., section 128, note 73; 8 C.J. 822. That he must account to the Mary Mac Plantation Company for the money collected by him at the end of the suit is of no concern to the appellee, and, as the appellant was not a purchaser for value, he holds the note subject to all the appellee's defenses thereto against the real owner. The Mary Mac Plantation was a proper, but not a necessary party to the bill of complaint (Marble v. Whaley, 33 Miss. 157); consequently the amendment need not have been made, and, when made, set forth no new cause of action.

The bill of complaint makes the note and the indorsements thereon an exhibit thereto, but the record does not disclose that the exhibit was filed, and, from the evidence, it appears that the note was not assigned by indorsement, but by a separate instrument. This assignment should have been made an exhibit to the bill, and it can still be so made, but it is clear that the case was not decided in the court below on the theory that the bill did not disclose the title to the note in Cottrell; and, had such an objection been there made it could have been obviated by making the assignment an exhibit to the bill.

In passing, it may not be amiss to say that the manner in which the Mary Mac Plantation Company was here joined as a party complainant was not in accordance with the practice in a court of equity. In the absence of a statute otherwise providing, a suit in a court of law on a chose in action, the legal title to which is in one person and the equitable title in another, must be brought in the name of the legal owner for the use of the equitable owner; but such is not the practice in a court of equity, for the equitable owner, if a proper party in such a suit, may be joined as such in his own right. Kitchins v. Harrall, 54 Miss. 474.

Reversed and remanded.