96 Ga. 447 | Ga. | 1895
Ordinarily, under the provisions of our code, an action must be brought in the name of the person having the legal right to maintain it, and the legal right is in the person to whom, according to the terms of the written contract, its obligation is due. Where a promissory note is secured by mortgage, and the note itself is indorsed and delivered to a third person, together with the mortgage as collateral security to its payment, the mortgage itself being not assigned in writing, the right of action upon the note is in the indorsee, because to that paper he acquires the legal title. The indorsee, however, cannot, in his own name, maintain an action for the foreclosure of the mortgage, but his remedy — he having only an equitable interest — is to foreclose in the name of the original mortgagee, suing for his use. By section 2244 of the code, all choses in action are assignable in writing so as to vest in the assignee the legal title. According to section 1996 of the code, the lien of a mortgage is made assignable in writing and not otherwise, such liens being embraced within the general class of liens comprehended within the terms of that