McCarty v. Hall

• Decision Date: 31 July 1850
• Parties: MCCARTY v. HALL.
• Court: Missouri Supreme Court

13 Mo. 480

MCCARTY

v.HALL.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO JACKSON CIRCUIT COURT.

WILSON, for Plaintiff. The court below erred in giving judgment against plaintiff upon the demurrer. There are some special causes assigned in said demurrer, but as there is but one cause set out in the demurrer, permitted by the act reforming the Practice at Law, approved February 24, 1849, I will notice that alone, which is, the plaintiff has no legal capacity to sue. The objection is made for two reasons: 1. Because the letters were void, being signed by the deputy instead of the principal clerk. This objection is met by the denial that it is necessary that the letters should be signed at all. It is the seal of the proper court that gives them authenticity. See Toller on Executors, and Post v. Caulk, 2 Mo. R. 35. 2. Because letters taken out in another State do not authorize the administrator to bring suit in this State, and that therefore his assignee cannot. This question is settled for the plaintiff in the case of Harper v. Butler, 2 Peters, 239. A third reason may be urged, which is this; that the assignment being on a separate piece of paper, and not indorsed on the note, is not such as authorizes suit to be brought in the name of the assignee.

There are two answers to this last objection: First, Such assignment, and plaintiff's being in possession of said note, is at least evidence of a transfer by delivery, which authorizes the transferee to sue in equity in his own name, and recover the amount of the same; and this action having been brought under the aforesaid act, which confuses and confounds law and equity, the plaintiff has a right to avail himself of either remedy--in fact, it compels the party in interest to sue in his own name. Second, Such assignment is good under our statute of assignment of notes and bonds. See Abell & Isbell v. Shields, 7 Mo. R. 120; 2 Bibb, 83; 3 Monroe, 46.

HAYDEN, for Defendant. The demurrer to the petition was well taken, and the court committed no error in sustaining it, and in rendering judgment thereon for defendant.

RYLAND, J.

John McCarty sued Jacob Hall in the Circuit Court of Jackson county, in this State. The action is under the new statute concerning the Practice in Courts of Justice. The petition discloses the following facts: That on the first of August, 1845, the defendant, Jacob Hall, executed and delivered to Edward Wilbourn his promissory note for the payment of fifteen hundred and twenty-two dollars and fifty cents, payable three years after date. That said Wilbourn died, and that some time in 1847, administration of his estate was duly granted to Robert Wilbourn by the Probate Court of Dallas county, in the State of Texas. That said Robert Wilbourn took upon himself the burden of the said administration, and afterwards and before the bringing of this action, said Robert Wilbourn, as such administrator, assigned over the said note to the plaintiff, John McCarty; and this suit, by McCarty, is in his name as the assignee of said administrator.

The defendant appeared and filed his demurrer to the plaintiff's petition, setting forth among other causes, that the “plaintiff hath no legal capacity to sue the defendant on said note.” The court below sustained the demurrer, and gave judgment thereon for defendant, and the plaintiff brings the case to this court by writ of error.

The only question for our consideration on this record, is the one involving the power of the plaintiff to maintain this action in his own name, as the assignee of an administrator of another State.

Can the assignee of a promissory note, transferred by the assignor as the administrator of an estate of a person dying intestate in a sister State, sue the payer and maker of said note in this State? If he can, then the judgment below must be reversed. If he cannot, it must be affirmed. ^(a)

It is the well settled law of the land, that the foreign administrator could not, himself, maintain this action, in his capacity of administrator upon a note given by a person living in this State to his intestate in his life-time. See Chapman, Adm'r of Lester, v. Fish, 6 Hill, 554. Simple contract debts are bona notabilia in the State where the debtor resides, and an administrator appointed in another State cannot release or control them. See Byron v. Byron, Croke Eliz. 472. “The debt is where the bond is, being upon a specialty but debt on simple contract follows the person of the debtor; and the difference has been oftentimes agreed.” Swinburn says, “Debts due the testator will make bona notabilia as well as goods in possession, but there is a difference between bonds and specialties and debts due on simple contract; for bond debts make bona notabilia, where the bonds or other specialties are at the time of the death of him whose they are, and not where he dwelt or died. But debts on simple contracts are bona notabilia in that country where the debtor dwells.”

In the case of Godwin v. Jones, 3 Mass. R. 514, Chief-Justice Parsons declared the law to be, that an administrator who has received letters of administration, under the authority of another State, cannot prosecute an action in Massachusetts by virtue of such letters of administration. “Administrator's power result from the provisions of the law made to dispose of the intestate's effects after his death had extinguished his property in them; and these provisions cannot extend to the effects not within the jurisdiction of the State from which such provisions of law derive their force.” See the case of Riley v. Riley, 3 Day's R. 74.

In the case of Stearns v. Burnham, 5 Greenl. R. 261, this point came fairly before the Supreme Court of the State of Maine. I will, therefore, refer to the facts of that case, and quote the language of the court. This was an action of assumpsit by the indorsee of a promissory note against the maker. The note was made payable to William Stearns of Salem, in Massachusetts, and indorsed by his executrix, who resided also in Salem, Massachusetts, to the plaintiff. The letters testamentary issued from a Probate Court in Massachusetts to the executrix. The maker of the note...