52 Cal. 232 | Cal. | 1877
The statute (Code of Civil Procedure, sec. 1493) must be construed to intend that if an opportunity was afforded one proper person to present the claim during the period of time allowed by law, that the claim should then be presented, or be barred as in any other case. Darling, in whom the legal title and possession of the note was vested during that time, had such opportunity, for he was here. He was a proper person to have presented the claim, because he was a proper party to have enforced it. (Price v. Dunlap, 5 Cal. 485 ; Gradwohl v. Harris, 29 Cal. 154; Wetmore v. San Francisco, 44 Cal. 300.) Indeed, Darling was the real party in interest, and the money was due and payable to him alone, whatever might have been the secret equities between him and the plaintiff. He was the only proper party to present or enforce the claim. (2 Parsons on Notes and Bills, (Ed. of 1865) 438-9 and 449-50; Zachary v. Gregory, 32 Tex. 452; Richards v. Better, 53 Ill. 467.)
This view is strengthened when we remember that the original note must be exhibited, if demanded, and the holder must bring suit upon it. (Code of Civil Procedure, secs. 1497-8.) Darling only could have complied with the statute in this respect, for being the owner of the legal title, he was entitled to its possession. The same rule is applied as to possession of land. (Estrada v. Murphy, 19 Cal. 272; Clarke v. Lockwood, 21 Cal. 222; Hartley v. Brown, 46 Cal. 203, and cases cited.)
“ To allow one not a party to a note to recover it, or the value of it, from the payee would be an anomaly in law.” (Fulton v. Fulton, 48 Barb. 589.)
Black & Stephens, for the Respondent.
Wherever there is a Code, and especially in this State, actions
The exception above mentioned is found in sec. 369 Code Civil Procedure, which could only be applicable by considering Darling the trustee of an express trust. If he were such trustee then he might sue with or without joining plaintiff, or she could bring the action herself; but he is not such trustee, because no trust to him as trustee for respondent as cestui que trust is expressed upon the face or by the terms of the contract, [*. e., the note] or in any manner with Darling, or in his name, for plaintiff’s benefit, as required by said section to constitute such a trustee. (See, further, Story on Eq. sec. 980; 34 Cal. 136 ; 32 Cal. 116 ; 15 Cal. 344.)
The purpose of the formal indorsement of the note by Darling to plaintiff was merely to prevent making Darling a party to the action, and of estopping him from making claim thereto.
Despondent had no notice of publication to creditors by reason of her absence from the State.
Darling had no authority, express or implied, to meet the unexpected conditions of the case. He occupied the situation of any money-broker or loaner. He could not exceed the limits of his actual authority. (Civil Code, sec. 2019.)
He had no authority to take the note in his name or to present this claim in fact or in law.
The note and mortgage were payable to Darling or order, and remained in his possession from the time they were made until some months after the expiration of the time specified in the notice to creditors for the presentation of claims for allowance against the estate. Darling was a resident of the county in which the letters of administration were issued, and it is not pretended that he did not have due notice of the notice to cred
Judgment reversed and cause remanded for a new trial.