8 Mo. 355 | Mo. | 1844
delivered the opinion of the Court.
This was an action of debt on a bond instituted by T. & P. Miller, to the use of Perry & Morrison, against the defendants, Paiilsell and Newman. On the trial of the issue, on the plea of non est factum, with notice of the special matter, the following facts appeared in evidence: — T. & P. Miller made a general assignment of all their lands and tenements, goods and effects, to R. A. Ewing and J. E. Irvine, for the benefit of their creditors. The words of the deed of assignment describing the personalty conveyed, were these, viz., “ All their goods and chattels, effects and property of every kind.” The bond sued on was not mentioned or described otherwise than in the words set forth. After the introduction in evidence of the deed of assignment, a witness was produced, who testified, that the bond sued on was part of the effects of T. & P. Miller, and was conveyed by the deed of assignment. This was objected to. The court thereupon refused to permit the plaintiffs to read the bond in evidence. The plaintiffs suffered a non-suit and moved to set it aside, which motion was overruled.
The question is, whether the suit should have been brought in the name of T. and P. Miller, or by Ewing & Irvine, the assignees ? Or in other words, whether there was such an assignment of the bond as took away the right to sue on the same, in the name of T. and P. Miller P This is a question not involving the right to the bond, but simply the mode in which they who are unquestionably entitled to it shall maintain an action upon it. Under such circumstances, the court should be influenced by considerations of convenience and facility to creditors, in recovering their demands. It is a matter of indifference to the defendants in whose name the suit is brought, as they are not jeoparded by one mode more than another. In the case of Isbell and Abel vs. Shields and Hickerson, (7 Mo. Rep.,) this Court held that a bond or note might be assigned by writing on a separate piece of paper or instrument. In that case there was a specific assignment, or an assignment in terms, which described the instrument. That opinion was dictated more by a respect for adjudged cases, than from a thorough conviction of its correctness, it being presumed that the legislature, in adopting the statute of a sister State, adopted likewise the interpretation put upon it by her courts, as it was generally* known. We are now required to go a step farther, and sanction a construction of the statute concerning bonds and notes which would, in many cases, involve the holder of them in difficulties in bringing suit, and turn him out of court .on points altogether beside the merits of the action. Unless there is imperative authority for such a course, a regard for the due administration of justice should induce us to avoid it. The statute concerning bonds and notes declares, that all bonds and promissory notes for money or property shall be assignable, and the assignee may maintain an action thereon, in his own name, against the obligor, or maker. This provision has been held imperative on the assignee to institute suit
As to the point respecting the admissibility of the parol evidence to show that the bond sued on was included in the assignment, it may be observed, if this were a suit in which the right of T. & P. Miller’s assignees to the bond was involved, the evidence would clearly he admissible, on the principle, that a resort to parol evidence is allowed to ascertain the subject-matter of a conveyance, so as to satisfy the description. If in the conveyance of an estate it is denominated Blackmore, parol evidence must be admitted to show what field is known by that name. Upon the same grounds, where there is a devise of an estate purchased of A., or a farm in the occupation of B., it must be shown by extrinsic evidence, what estate it was that was purchased of A., or what farm was in the occupation of B., before it can be known what is devised: but the evidence is inadmissible for the purpose for which it was received.
Judgment reversed.