62 N.J.L. 530 | N.J. | 1898
The opinion of the court was delivered by
By the declaration demurred to it is averred that on December 1st, 1893, the Burlington Carpet Company
If the plaintiff is to be considered as the assignee of a chose in action, he must fail because there is no authority for his maintaining suit thereon in his own name. Statutes making dioses in action assignable at law have been held to include those arising ex delicto if they affect property rights (Final v. Backus, 18 Mich. 218 ; 26 Am. & Eng. Encycl. L. 746); but our statute in that regard is in terms limited to those arising ex contractu, except in case the assignor be dead. Gen. Stat., pp. 2536, 2591, §§ 21, 340. That the plaintiff is successor to a trust is immaterial. The trust itself was a mere equity arising out of the convention of parties and not by operation of law. A court of law deals only with legal titles, and the plaintiff must rely on his assignment.
On the other hand, if the plaintiff, as- we think is properly the case, is to be considered as succeeding to the legal title of chattels by assignment of the mortgage, he has no standing to maintain trover when he alleges a conversion prior to his right of possession. The holder of a mortgage entitled to possession may sustain trover for the mortgaged chattels, and the mere statement of a mortgage without naming its terms will imply a right of possession ; but it is fundamental in trover that the plaintiff must have had his right, whatever its
The demurrer will be sustained, with leave to the plaintiff, on payment of costs, to amend either by a change, in the summons and declaration, of the name of the plaintiff, or by a change in the allegation of the declaration from one of conversion before to one of conversion after the accrual of the plaintiff’s title, if the fact so warrants, and otherwise as he may be advised.