44 Miss. 799 | Miss. | 1870
Suit was brought by B. F. Owen, for the use of J. M. Haynes, A. G. Otey, J. M. West, T. S. Wright, J. F. Wade, J. B. Walton, against Hatchcock and L. Zeigler, makers of a promissory note, payable to said Owen or bearer. The death of the usees, Walton, Otey and West were suggested. The suit abated as to Walton, but was renewed in the name of the legal representatives of Otey and West. The defendants pleaded non assumpsit. At the November term, 1867, they, by attorney, waived their plea, and making no further defense, judgment final was rendered against them. The questions made in this court by the assignment of errors are : 1st. That the note being payable to bearer, there was not a legal title to the paper in Owen, the nominal plaintiff, and therefore, the suit should have been brought by the usees in their own name; 2d. The writ which was served on Hatchcock, omitted the name of one of the usees; and 3d. There was abatement as to one of the usees, and no revivor against his legal representative.
1st. A note payable to bearer is negotiable by delivery.
2d. It is quite easy to form a distinct conception of this equitable right, whilst the ownership may be in the payee or some other person as trustee for usees.
3d. If there has not been an actual delivery of the note, although the usees may be interested in the money due upon it, the legal right, dry and naked, remains in the payee. The record does not show that Owen has divested himself of the legal title. There is no averment that the usees acquired ownership by delivery. Nor is there any allegation of the transfer of the paper.
Whilst the authorities quoted by the counsel for the plaintiff in error affirm the well settled doctrine that the plaintiff in a court of law must show a legal title to the paper sued on, they have no application to this case. It does not appear that the note in controversy was transferred to the usees by delivery. And, therefore, there has not been such negotiation of the paper as would enable them to sue directly in their own names.
It would have been competent for the defendants (if they had not abandoned their plea), to have shown that the usees were the holders and owners of the note by transfer; or that the legal title was not in the owner, but somebody else,, and thereby have defeated a recovery in the then state of the pleadings. But having waived the plea, they came too late to litigate the question in this court. In reality there is nothing in the record to predicate the objection upon.
If there was a serious defect in the writ which was served on Hathcock, it was cured by his plea to the merits. The office of the process was to give notice of the suit, and confer jurisdiction on the court over the person of the defendant. If he appears and pleads on defective service of the writ, or on service of a defective writ, or without a writ
The last objection is the abatement of the suit as to one <©f the usees, and no revivor as to his legal representatives. In Belle G. Eckford et al. v. Hogan & Christian, adm’rs, MS. opinion, we carefully looked into the cases on the subject of the interests of parties to negotiable paper, as to the remedy at law. In Field v. Weir, 28 Miss., 67, it was quite distinctly intimated by the court, that the maker of a note had no concern, when sued by the payee for the use of another, with the equitable interests of parties to the money. The legal tribunal takes cognizance alone of legal interests, for the most part leaving the equities to be settled by another court. The very point went into judgment in Chadsey v. Lewis, Gillm. Ill. R., 159 ; and McHenry v. Ridgely, 2 Scam., 309. In these cases the effort was to defeat a recovery, by showing that other parties not before the court had a beneficial interest in the debt. In the latter case, the plea was that the note was the property of the bank; that it was indorsed to “ Ridgely, cashier,” who had no interest in it. The court coming to the conclusion that the legal interest was in the plaintiff, would not suffer the fact that he held as trustee for the bank, to defeat the suit; it is sufficient that he has the legal title. So this suit being in the name of Owen, the payee, and there being nothing in the record to show that the note has been negotiated, so as to pass the legal title, he has a right to stand upon his legal right in a court of law.
There is nothing in these views which militates, against the right of the maker to set up payment either to the payee before notice of a transfer to the equitable holder, or the same or like defense against the latter, accruing after his interest was acquired. Payments made to, or offsets against the substantial holder, although by equitable title, are valid defenses to the suit by the payee as nominal plaintiff.
Let the judgment be affirmed.
