Davis v. Christy
| Decision Date | 31 January 1844 |
| Citation | 8 Mo. 569 |
| Parties | DAVIS v. CHRISTY. |
| Court | Missouri Supreme Court |
YOUNG and HICKMAN, for Appellant. Foster, the payee of the bond, by the assignment to Holden, divested himself of the legal title to the bond, and the title thereof was, by said assignment, vested in Holden, the first assignee; and as Foster, at the time he made the assignment to Christy, was not the legal owner of the bond, and had no interest therein, he could not, by the assignment, transfer any title or interest to the plaintiff, Christy, and consequently Christy could not maintain an action thereon. See Rev. Stat. of 1835, p. 105, § 2; Jeffers v. Oliver, 5 Mo. R. 433. Christy obtained no greater title to, or interest in, the bond, by the assignment of Foster to him, than Foster had at the time of the assignment. The bond sued on was not negotiable, but merely assignable, by our statute. Beatty v. Anderson, 5 Mo. R. 447. In an action on a bond or note by the payee or obligee, a plea alleging that the bond or note had been assigned to a third person before suit brought, is a good bar to the action. Thomas, use of Deane, v. Wash, 1 Mo. R. 666. To transfer the legal title to a bond or note not negotiable, so as to enable the assignee to maintain an action thereon in his own name, there must be an assignment in writing. At common law, bonds of the description of the one sued upon could not be assigned, so as to enable the assignee to maintain an action thereon in his own name, and it is by our statute law alone, that the assignment of bonds or notes transfer the legal title in the assignee, and the assignment to transfer the legal title must be in writing, as this Court has frequently decided. Now, the only way the legal title of the bond could be re-vested in Foster was, by the re-assignment in writing of Holden, the legal owner of the bond. Erasing the assignment to Holden did not re-vest the title in Foster, but to do so it was necessary that there should be an actual re-assignment from Holden to Foster. Able and Isbell v. Shields, 7 Mo. R. 120. Davis, the obligor, would have had a right to plead any just off-set he might have had against Holden in a suit on the bond by him, or any just off-set he (Davis) might have had against Holden to the bond in the hands of his assignee at the time of the assignment. See concerning Bonds and Notes, Rev. Stat. of 1835, p. 105, § 4. Yet if, by erasing the assignment to Holden, the title re-vested in Foster, the payee, and he or his assignee is permitted to maintain an action thereon, Davis would thereby be deprived of availing himself of his off-set against Holden; this would open a wide door for fraud. The facts of this case show, that it was not the intention of Holden, the first assignee, by erasing the assignment, to re-vest the title in Foster, the payee, but as a more convenient mode of transfering the title to Christy, or perhaps of avoiding a just off-set that Davis had against Holden. Foster, when he made the assignment to Christy, seemed to be aware that he had no title to the bond, for the assignment is without recourse. For these reasons we contend, that the judgment of the Circuit Court should be reversed. Bradford v. Ross, 3 Bibb, 238; Long v. Bank Cynthiana, 1 Littell, 291; Wiggins v. Rector, 1 Mo. R. 338; Bates v. Martin, 3 Mo. R. 259.
LEONARD and BAY, for Appellee. 1. There was no sufficient evidence of any assignment of the bond by Foster, the obligee, to Holden. 2. By the cancellation of the assignment, if any such were made, the legal title of Holden was divested, and the same remained in Foster. Burdick v. Green, 15 Johns. R. 248.
Christy, as assignee of J. M. Foster, sued Davis in a justice's court on a bond executed by Davis to Foster, for the sum of $82. The cause was taken to the Circuit Court, where Christy recovered judgment, from which Davis appealed. On the trial in the Circuit Court, Davis, to defeat Christy's right of recovery, objected to the reading of the bond, and the assignment thereon as evidence; and in support of this objection proved, that James M. Foster, the obligee of the bond, assigned it for a valuable consideration to N. B. Holden, by a writing indorsed on the bond, and signed by Foster; that some six months thereafter Holden brought the bond to Foster with the assignment cancelled, and requested him to assign the bond to Christy, which Foster accordingly did, making it without recourse against himself. The court overruled the objection, and a verdict...
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