147 Mass. 476 | Mass. | 1888
The note was made in Connecticut, where the parties resided, and became due in 1868. The defendant
The plaintiff is the payee of the note, and the action, whether brought by the assignee or by the plaintiff, will lie in his name, as well as in the name of the assignee. Mayhew v. Pentecost, 129 Mass. 332. If brought by the assignee, it would be barred by the statute of limitations. U. S. Rev. Sts. § 5057. Jenkins v. International Bank, 106 U. S. 571. Ross v. Wilcox, 134 Mass. 21, and cases cited. There was no fraud or concealment by the defendant that would prevent the operation of the statute.
The assignment in bankruptcy vested the legal title to the note, as well as the beneficial interest in it, in the assignee, and the plaintiff could possess a right to maintain an action upon it for his own benefit only by a transfer of the note to him by the assignee, or by the consent of the assignee to the action. There has been no sale or assignment of the note by the assignee, and so the objection that a purchaser from the assignee, after the disability of the statute of limitations had attached, would take subject to that disability, does not arise. The plaintiff contends that the suit is brought for his benefit, with the knowledge and consent of the assignee; that his right is good against all the world but the assignee, and, the assignee not objecting, the defendant cannot question the plaintiff’s right to maintain the action; that the assignee has a right to abandon the claim; and that, having elected not to take it under the assignment, it belongs to the plaintiff as if there had been no assignment.
The fatal objection to this contention, in whatever form it may be stated, is that the assignee did not elect to abandon the claim,
In this case it appears that the assignee did not elect to abandon the claim, and did not authorize a suit upon it, until after his right of action was barred. While he alone had the right of action upon the note, the right was barred by the statute; it could not be revived by his subsequent abandonment of his right, or consent to an action. If he were summoned in, he could not prosecute or authorize the prosecution of the action against the defence of the statute of limitations. He could neither sell the claim, nor authorize nor consent to a suit upon it except subject to the defence of the statute. See Gifford v. Helms, 98 U. S. 248; Wisner v. Brown, 122 U. S. 214; Cleveland v. Boerum, 24 N. Y. 613; Moses v. St. Paul, 67 Ala. 168; Buckingham v. Buckingham, 36 Ohio St. 68, 77.
Judgment on the finding for the defendant.