Speelman v. Culbertson

15 Ind. 441 | Ind. | 1860

Wobden, J.

Suit by Culbertson, against the appellants, upon a promissory note made by Speelman and Fox to Lewis Boeoch and Francis Hélm¡ administrators of the estate of John Boeoch, deceased. The payees transferred the note, by delivery, to the plaintiff. They were made parties, and a default taken against them. The makers answered; and on trial by the Court, there was a finding and judgment against them.

It is objected, that the administrators could not transfer the note. This is clearly a mistake. Had the note been payable to their intestate, they could have transferred it. Thomas v. Reister, 3 Ind. 369. It appears that the note was given for money, belonging to the estate of the deceased, lent by the payees to the makers thereof. It was given to Boeoch and ILelm, and the words “ administrators, ” &c., may be regarded merely as descriptive of the persons. Helm v. Van Vleet, 1 Blackf. 342; id. 116. Such being the case, they could, of course, make a valid transfer in their own right.

Again: it is urged that the evidence shows that the entire interest in the note was not transferred to the plaintiff. We think otherwise. To be sure, the debt for which the note was transferred to the plaintiff was not equal to the note, and the difference the plaintiff was to give to his wife, when collected (she being a daughter of one of the assignors); but this is no reason why the equitable title to the note should not be deemed to have vested in the plaintiff; nor is it any reason for joining her as plaintiff in the action.

It is also claimed, that there should have been some kind of a judgment rendered against the assignors of the note. It might, perhaps, be proper, in such cases, to enter a formal judgment, against equitable assignors, to the effect that they be barred from setting up any claim upon the paper transferred, against the makers; but this seems to us to be wholly unnecessary. They are brought in merely to answer as to assignment; and if they make default, and if upon trial it is found that the assignment was made, and the plaintiff recover against the maker, such assignors would be bound thereby, although no formal judgment was rendered against them.

A. Steele and H. D. Thompson, for appellants. R. T. St. John, for appellee.

We find no error in the record; hence, the judgment must be affirmed.

Per Ouriaan.

The judgment is affirmed, with costs, and 5 per cent, damages.