30 Wash. 340 | Wash. | 1902
The opinion of the. court was delivered by
This is an action brought to recover upon a promissory note, and to foreclose a mortgage given to secure the same. The note and mortgage in suit were executed and delivered by the appellants to the Solicitor’s Loan & Trust Company, a corporation, which, in turn, for a valuable consideration, assigned the same to the respondent. The defenses set up are almost wholly technical. It is not disputed that a large sum (all that the respondent claims, in fact) is justly due and owing upon the note and mortgage, but it is claimed that the respondent did not sufficiently prove its legal capacity to maintain the action. While some thirty-one assignments of error have been made, they can all be grouped under a few general heads; and it is in this manner we shall proceed to consider them, without making reference to the specific assignments. <
1. The respondent was incorporated by a special act, and certain acts supplemental thereto, of the legislature of the state of Pennsylvania. It sought to prove its due incorporation by producing a copy of these acts, duly authenticated under the great seal of that state. It is contended that this was insufficient, because it was not
2. Among the powers conferred upon the respondent by the act incorporating it is the power to receive, hold, and manage trust estates. From the evidence it appears that one John Gibson died testate in Pennsylvania, leaving a large amount of property, which he devised to three trustees by name, “and their successors,” to manage and dispose of according to certain directions contained in his will. One of the trustees named refused to qualify as
3. Another reason urged for reversal is that the respondent cannot maintain an action as trustee within this state. Strictly speaking, perhaps, a trustee deriving his powers from statute or judicial appointment cannot, as of right, maintain an action in courts outsidé of the jurisdiction of his appointment, and the tendency of the courts in earlier times was to refuse to entertain such actions. It may be true, also, that this privilege is even now generally denied to executors and administrators. But this court has, in common with many other courts, adopted a different rule with reference to certain classes of trustees, such as receivers, assignees, and like officers, and permit these to maintain actions when to do so does not interfere with the rights of local creditors pursuing their remedies in the local courts. Whitman v. Mast, 11 Wash. 318 (39 Pac. 649, 48 Am. St. Rep. 874) ; Happy
4. Some question is made as to the validity of the assignment from the original mortgagee to the respondent, it appearing that the name of the respondent was not inserted in the blank form of assignment used until sometime after the transfer was actually made. As the note and mortgage were actually paid for and delivered, it would seem that in a court of equity a showing of a failure to make a formal indorsement of the papers ought not to be fatal to the right of the purchaser to recover thereon; but, be this as it may, it was shown by the uncqntradicted testimony, that the respondent’s name was afterwards inserted in the blanks with the express consent of the assignor. If title did not fully pass by the sale and delivery, it did do so by the latter transaction.
The judgment is affirmed.
Be avis, O. J., and Mount, Anders and Dunbar, JJ., concur.