29 F. 316 | U.S. Circuit Court for the District of Southern New York | 1886
1 have carefully examined the additional suggestions sent me by counsel, and see no reason to change the opinion expressed at the argument. To what was then said but a word need be added. The transfer to Asa L. Shipman is in language so emphatic and exact that there is little opportunity for misapprehension. " It matters not what the instrument is called. It matters not that it may be defeated by the payment of $6,500 on the twenty-fifth of November, 1887. The fact remains that, by virtue of this assignment or mortgage, the title to the patent was, on the twenty-fourth of April, 1886, when this action was commenced, outstanding in Asa L. Shipman. If it was not absolute, it was a present, existing title, defeasible upon a condition subsequent. On the sixteenth of April, therefore, when Sarah E. Waterman assigned all her right, title, and interest to the complainant, she had nothing to assign which could at all chango the legal status of the parties. She could not vest a clear title to the patent in the complainant, for the obvious icason that she had previously disposed of it, and did not own it. The agreement of the twentieth of November, 1884, being a license, and nothing moro, does not enable the complainant to maintain this action without joining the holder of the legal title. The suggestion that, irrespective of the Shipman assignment, the complainant is entitled to prosecute for infringements alleged to have occurred between February 12 and November 25, 1884, is equally unavailing; for, assuming such a right of action to exist, it could only be maintained on the law, and not in the equity, side of the court.
The plea is allowed. The complainant may amend upon payment of costs within 10 days.