Ross v. Smith

• Decision Date: 01 January 1857
• Citation: 19 Tex. 171
• Parties: WILLIAM M. ROSS v. JAMES E. SMITH.
• Court: Texas Supreme Court

19 Tex. 171

WILLIAM M. ROSS

v.JAMES E. SMITH.

Supreme Court of Texas.

1857.

The possession of a promissory note, payable to another or order, and not indorsed in blank by the payee, does not constitute such evidence of ownership as will enable the person in possession to sustain an action on the note, upon allegation that, for value received, it was transferred to plaintiff by delivery. [1 Tex. 87;2 Tex. 351, 397;6 Tex. 515;11 Tex. 142;22 Tex. 53;28 Tex. 622.]

Appeal from Rusk. Tried below before the Hon. Charles A. Frazer.

The defendant pleaded a general denial. The other facts are stated in the opinion.

M. Casey, for appellant, cited Heath v. Hall, 4 Taunt. 326; Chit. on Bills, 8; Jones v. Witter, 13 Mass. 304;Dunn v. Snell, 15 Id. 485-7; 2 Story's Eq. 1047; Briggs v. Dorr, 19 Johns. 96; Fitcome v. Thomas, 5 Greenleaf, 282; Ogden v. Slade, 1 Tex. 15; 1 White & Tudor's Lead. Cas. 670; 1 Ad. & El. 498, 504; Story on Prom. Notes, sec. 196, note 1; 4 Mart. (N. S.) 355; 5 Geo. 239; 1 Kelly, 306; 9 Barb. 214;1 Cow. 598.

W. Stedman, for appellee, cited 2 Story on Prom. Notes, sec. 43; 2 Id. secs. 1039, 1040; Merlin v. Manning, 2 Tex. 351;Smith v. Clopton, 4 Id. 114;Greneaux v. Wheeler, 6 Id. 522.

HEMPHILL, CH. J.

The appellant, who was plaintiff below, brought suit against the appellee on the following note:

+--------------------------+
                ¦$132.10.¦January 1, 1855. ¦
                +--------------------------+
                

One day after date I promise to pay to the order of C. Vincent, one hundred and thirty two dollars and ten cents, value received, with interest, at the rate of ten per cent. per annum, from maturity until paid.

JAS. E. SMITH.

The note was read to the jury as evidence, against the objection of the defendant that the plaintiff had not offered any proof of ownership. But, in the charge, the court instructed the jury that the plaintiff was not entitled to recover, unless they were satisfied, from the proof, that the plaintiff was the owner of the note; and that possession of the note was not sufficient proof of ownership.

The note being the only evidence offered, the jury found for the defendant, and the plaintiff appealed.

The note was not indorsed specially to the plaintiff, nor was it indorsed in blank; and the only question is, whether the mere possession, without proof of a bona fide assignment or transfer, either by parol or writing, was prima facie evidence of ownership.

The only instruments in which the law recognizes the property as passing, like coin, with the possession, are those termed negotiable, and which are transferable by delivery, viz.: bills and notes payable to bearer, or payable to order and indorsed in blank. The legal right to the property secured by such instruments passes by delivery; and the possession is prima facie evidence of right in the property. Such instruments pass by delivery from hand to hand; and though they may have been lost or stolen from the true owner, yet the possession of the holder is prima facie proof of right; and if he be a bona fide transferee for value, his title will be perfect, whether the one from whom he receives the instrument had any title or not. Miller v. Race, Notes in Smith's Leading Cases, p. 258; Greneaux v. Wheeler, 6 Tex. 523; Story on Promissory Notes, secs. 43, 196.

But such is not the rule with reference to instruments not negotiable, or which do not pass the legal right by delivery. A third person, not a party to such note, must show by what right he claims to recover from the debtor, or, in other words, that he holds under a bona fide assignment, valid in law, from the owner of the note.

The defendant by his counsel has insisted and shown, from numerous authorities, that a chose in action may be assigned verbally or by delivery, as well as in writing. Heath v. Hall, 4 Taunton, 326; 13 Mass. 304;15 Mass. 485, 486, 487. An assignment of a debt may be by parol as well as by deed. 2 Story's Eq. 1047. A delivery of a chose in action, for a valuable consideration, is sufficient, and passes the title. 19 Johns. 96. He also insists that to make the parol assignment good against the debtor it is not necessary that the assignee should give notice of the assignment to the debtor.

It is no doubt true that the assignment of a debt does not in equity,...