28 Iowa 344 | Iowa | 1869
Although the note was not indorsed to the plaintiff, yet if she was the real owner thereof, she might bring suit thereon in her own name —• being the real party in interest (Rev. § 2757), and the action being one concerning her separate property. Rev. § 2771, subdiv. 1. And this, upon the theory, which is not controverted or decided in this case, that the husband and wife are competent to contract with each other in relation to their personal property, the same as other persons.
In this case, however, the husband did not obtain possession of the note itself, but he did obtain payment thereof in full from the maker. Now, although, as we have seen, the owner and holder of a negotiable note, payable to order and not indorsed, may sue upon it in his or her own name, yet such action must be without prejudice to any defense the maker may have against the note. But, of course, where there is a valid and bona fide assignment of a note, the defense by the maker is limited to such matters as existed at the time of notice to the maker, of the assignment; yet, if for any reason the supposed assignment did not transfer the ownership of the note to the holder, such holder will be subject to any defense of the maker which he may have up to the trial. And in this case, as we have also already seen, the plaintiff— the wife — has not the ownership of the note as against the payee — her husband.
Since the maker of the note, the defendant in this action, has a defense to it, by reason of the full payment
It is only necessary to remark, further, that the evidence affords no reasonable ground whatever for holding that the note was a gift by the husband to the wife, and hence we have no occasion to discuss or controvert the law a- plicable to such hypothesis, as it is stated by appellee’s counsel in his brief submitted in this action. The judgment of the district court and of the general term must be
Reversed.