McCarty v. Hall

Jul 15, 1850

Versions:13 Mo. 480

RYLAND, J.

John McCarty sued Jacob Hall in the Circuit Court of Jackson county, in this State. The action is under the new statute concerning the Practice in Courts of Justice. The petition discloses the following facts : That on the first of August, 1845, the defendant, Jacob Hall, executed and delivered to Edward Wilbourn his promissory note for the paymenfoffifteen hundred and twenty-two dollars and fifty cents, payable three years after date. That said Wilbo.urn died, and that some time in 1847, administration -of his estate was duly granted to Robert Y/ilboum by the Probate Court of Dallas county, in the State of Texas. That said Robert Wilbourn took upon himself the burden of the said administration, and afterwards and before the bringing of this action, said Robert Wilbonrn, as such administrator, assigned over the said note to the plaintiff, John McCarty; and this suit, by McCarty, is in bis ■ name as the assignee of said administrator.

The defendant appeared and filed his demurrer to the plaintiff’s petition, setting forth among other causes, that the “plaintiff hath no legal capacity to sue the defendant on said note.” ' The court below sustained the demurrer, and gave judgment thereon for defendant, and the plaintiff brings the case to this court by writ of error.

The only question for our consideration on this record, is the one involving the power of the plaintiff to maintain this action in his own name, as the assignee of an administrator of another State.

Can the assignee of a promissory note, transferred by the assignor as the administrator of an estate of a person dying intestate in a sister State, sue the . payer and maker of said note in this State ? If he can, then the judgment below must be reversed. If he cannot, it must be affirmed.(a)

It is the well settled law of the land, that the foreign administrator could not, himself, maintain this action, in his capacity of administrator upon a note given by a person living in this State to his intestate in his life-time. See Chapman, Adm’r of Lester, v. Fish, 6 Hill, 554. Simple contract debts are bona notabilia in the State where the debtor resides, and an administrator appointed in another State cannot release or control them. See Byron v. Byron, Croke Eliz. 473. “ The debt is where the bond is, being upon a specialty hut debt on simple contract follows the person of the debtor ; and the difference has been oftentimes agreed.” Swinburn says, “Debts due the testator will make bona notabilia as well as goods in possession, but there is a difference between bonds and specialties and debts due on simple contract; for bond debts make bona notabilia, where the bonds or other specialties áre at the time of the death of him whose they are, and not where he dwelt or died. But debts on simple contracts are bona notabilia in that country where the debtor dwells.”

In the case of Godwin v. Jones, 3 Mass. R. 514, Chief-Justice Parsons declared the law to be, that an administrator who has received letters of administration, under the authority of another State, cannot prosecute an action in Massachusetts by virtue of such letters of administration. “ Administrator’s power result from the provisious of the. law made to dispose of the intestate’s effects after his death had extinguished his property in them ; and these provisions cannot extend to the effects not within the jurisdiction of the *345State from which such provisions of law derive their force.” See the case of Riley v. Riley, 3 Day’s R. 74.

In the case of Stearns v. Burnham, 5 Greenl. R. 261, this point came fairly before the Supreme Court of the State of Maine. I will, therefore, refer to the facts of that, case, and quote the language of the court. This was an action of assumpsit by the indorsee of a promissory note against the maker. The note was made payable to William Stearns of Salem, in Massachusetts, and indorsed by his executrix, who resided also in Salem, Massachusetts, to the plaintiff. The letters testamentary issued from a Probate Court in Massachusetts to the executrix. The maker of the note always lived in Maine. A verdict was taken for the plaintiff, subject to the opinion of the court, upon the question whether any right to maintain this action was conveyed to the plaintiff by the indorsement of the executrix.

It was argued for the defendant against the power of the executrix to convey to the plaintiff a right of action in his own name, on the ground that it facilitated the withdrawing of funds from this State, which might be wanted for the payment of debts due to our own citizens. On the part of the plaintiff it was contended, that as the executor succeeded to all the rights and equities of the testator, with the general power to indorse and thus transfer his negotiable notes, it was essential to the exercise of this right, that the indorsee should have all the powers of the payee, including Die right to sue in his own name ; otherwise the note must lose its negotiable character. This right being once vested in the indorsee, belonged to him always, and in all places by the law-merchant. The executor is no longer known as such, except as having been the medium of passing the property to the indorsee, and his authority, under the laws of another Stale, to transfer the property, and with it the privileges of an indorsee, may be proved before this court, as any other act in pais.

Mellen, Chief-Justice, delivered the opinion of the court. He said, “ It is clear that the executrix herself, could not maintain an action in our courts upon the note, as was decided in the case of Jones v. Godwin, 3 Mass. R. 514. We would merely observe that the power of the executrix, by law, is to administer all the goods, chattels, rights and credits of the testator, which are within Massachusetts. Debts due to the testator, at the time of his death, from persons residing in other States, are placed by law on the same ground as goods and chattels belonging to him and being in another State. Over these she, as executrix, deriving her authority under the laws of Massachusetts, has no control. We are then led to inquire, how an executor or administrator, acting under an authority derived from another State, can,, by indorsing a note due from one of our citizens, give to his indorsee a power which he himself does not possess — that is, of successfully suing for and recovering it in our courts. If this can be done, it will be an indirect mode of giving operation in this State to the laws of Massachusetts, as such; or, in other words, to an authority derived directly from laws which are not in force in this State. By adopting such a principle, the effects or credits of a testator or intestate, found in this State, might be withdrawn, which may be necessary for satisfying debts due from such testator or intestate to citizens of this State. Such a principle or course of proceeding has often been successfully opposed. See 3 Mass. R. 517; 4 Mass. R. 324; 8 Mass. R. 515; 9 Mass. R. 350; 11 Mass. R. 269; 3 Pick. 128; 5 Cranch, 289; 13 Mass. R. 146.” The court were all of opinion that the plaintiff could not recover, and that the judgment must be entered for the defendant.

This case is directly in point, and the reasoning is, to my mind, satisfactory and conclusive. Were our courts to permit the executors or administrators of another State to sue and maintain actions on notes and bonds due to their testators or intestates by the citizens of our State, or to permit their assignees to sue ; all the effects, goods and chattels of such testators or intestates might thereby easily be withdrawn from our jurisdiction to the prejudice and injury of our citizens. Such is never suffered or permitted. It is our duty to guard the interests of our own citizens, to look well to our own household first. Nostrum jus, magis quam jus alienum, serwmus.

In this case, the debt due by Jacob Hall to Edward Wilbourn — Hall residing *346in this State and Wilbourn dying in Texas — never was bona notdbilia, in Texas —never was assets in the hands of the administrator in Texas, but remained as goods and chattels in Missouri; was bona notdbilia in this State, and can only he lawfully demanded of Hall by a person clothed with authority under our laws. Said debt never was under the control of the foreign administrator.

All the argument then about vested rights in the administrator and in his assignee,, being without foundation, vanishes “ into air, into thin air.”

I am aware of the case reported in 3 Peters, 340, Harper v. Butler, and though I entertain the most profound respect for the opinion of the able jurist who decided that case, yet, from the report of the case it is manifest that it was but lightly considered by the court. It was not argued by any person for the defendant in error, and the point appears to me to have escaped the mind of the Judge.

The court, in their opinion, say that the “District Court proceeded on the idea that the executor in Kentucky could not transfer a chose in action in that State, because the obligor did not reside there. This court supposes the law to be otherwise.” How, the question as to where the bona notdbilia in this case were, at the time of the assignment, was never noticed by the court. If Butler gave his note to Morrison, the testator in this case, and Morrison lived and died in Kentucky, and Butler lived in Mississippi, and not in Kentucky, then I consider the debt of Butler to Morrison, never was under the control of the Kentucky executor; nor could he or his assignee sue for it in Mississippi, unless the laws of Mississippi authorize it. The authority of this case, lacks the consideration and attention which were bestowed on the case of Stearns v. Burnham, 5 Greenl. R. The authorities on this subject have been collected by Cowen & Hill in their Hotes to Phillips’ Evidence, p. 870, and from a perusal of many of the cases therein cited, I am of the opinion, that the soundest principles of public policy, as well as a proper regard to the law of the case, requires this court' to declare the law in favor of the defendant in error. This being the opinion of my brother Naptón, the judgment of the Jackson Circuit Court is affirmed.

Notes

(a) Naylor v. Moffatt, 29 Mo. R. 126.