Seybold v. Grand forks National Bank
| Decision Date | 12 May 1896 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Templeton, J. Action by Joseph Seybold against the Grand Forks National Bank. Charles H. Baldwin, administrator, intervened. From a judgment for plaintiff, defendant and intervener appeal.
Affirmed.
J. H Bosard, for appellants.
The action must be brought in the name of the real party in interest and not by the person in whom the mere naked apparent legal title is vested. Sections 5221, 5223, Rev Codes; Pom. Rem. 156. The assignee must hold both the legal and equitable title to be the real party in interest. Gradwohl v. Harris, 29 Cal. 150. The defense that plaintiff is not the real party in interest, when proven, is a bar to the suit. Pom. Rem. 156; Edwards v Campbell, 23 Barb. 423; Killmore v. Culver, 24 Barb. 656; James v. Chalmers, 6 N.Y. 209-215; Eaton v. Alger, 57 Barb. 179; Swift v Ellsworth, 10 Ind. 205; Robbins v. Deverill, 20 Wis. 150; Grueber v. Baker, 9 L. R. A. 302; Hoagland v. Van Etten, 22 Neb. 683; Rock County National Bank v. Hollister, 21 Minn. 385; Third National Bank v. Clark, 23 Minn. 268; Bostwick v. Bryant, 113 Ind. 438; Bartholomew County Commissioners v. Jameson, 86 Ind. 163; Phelps v. Bush, 15 Ia. 64; Iselin v. Rowlands, 30 Hun. 488; Pixley v. Van Nostrum, 100 Ind. 34; Board of Commissioners v. Jameson, 86 Ind. 163; Ind. R. R. Co. v. Adinson, 114 Ind. 282. The fact that plaintiff has the legal title without any beneficial interest does not entitle him to sue. Parker v. Totten, 10 How. Pr. 233; McLaren v. Hutchinson, 22 Cal. 187. This defense may be raised by any person beneficially interested in the result of the action who intervenes. Gradwhol v. Harris, 29 Cal. 150. The intervener as administrator is entitled to the certificate in dispute. Section 6372, Rev. Codes; Reiser v. Gigrich, 61 N.W. 30; Wiswell v. Wiswell, 35 Minn. 371, 39 N.W. 166. Property disposed of by residuary legacy does not vest directly in the legatee but in the executor by operation of law subject to distribution. Melnes v. Pfister, 18 N.W. 255, 59 Wis. 192; Gundry v. Estate of Henry, 27 N.W. 401, 65 Wis. 599. By section 3562, Rev. Codes, gifts in view of death are placed upon the same footing as legacies in so far as creditors are concerned.
Cochrane & Feetham, for respondent.
Seybold the plaintiff, is a party in sufficient interest to sustain this action. He held the certificate upon an unqualified indorsement of the payee, giving him the legal title to the paper, open however, to any defenses to which it could be subjected in the hands of the original payee. Anderson v. Reardon, 46 Minn. 185, 48 N.W. R. 777; Castner v. Austin, 2 Minn. 32; Vanstrum v. Liljengen, 37 Minn. 191, 33 N.W. R. 555; Elmquist v. Markoe, 45 Minn. 305, 47 N.W. R. 970; Sheridan v. Mayor, 68 N.Y. 30; Hayes v. Hawthorne, 74 N.Y. 486; City Bank v. Perkins, 29 N.Y. 554, 86 Am. Dec. 331; Felenthal v. Hawks, 52 Minn. 178; O'Connor v. Irvine, 16 P. 236; McLaughlin v. First Nat'l Bank, 6 Dak. 406; Giselman v. Starr, 40 P. 8; Rissing v. Teabout, 35 N.W. R. 499; Yonker v. Martin, 18 Ia. 143; Pierson v. Cummings, 28 Ia. 345; Green v. Marble, 37 Ia. 95; Warnock v. Richardson, 50 Ia. 450; Knadler v. Sharp, 36 Ia. 234; Boyd v. Corbet, 37 Mich. 52; White v. Stanley, 29 O. St. 423; Gere v. Ins. Co., 23 N.W. R. 137; Sheldon v. Pringle, 17 Barb. 468; Gillepsie v. Ry. Co., 12 Ind. 398; Cottle v. Cole, 20 Ia. 485; Eaton v. Alger, 47 N.Y. 345; Price v. Dunlap, 5 Cal. 485; Gushee v. Leavitt, 5 Cal. 160; Caldwell v. Lawrence, 84 Ill. 161; Rice v. Savery, 22 Ia. 470; Cassiday v. First Nat'l Bank, 30 Minn. 86; Devol v. Barnes, 7 Hun. 342; Davis v. Reynolds, 5 Hun. 651; Green v. Magra Ins. Co., 6 Hun. 128; Allen v. Brown, 44 N.Y. 228; Meeker v. Claghorn, 44 N.Y. 349; Durgin v. Ireland, 14 N.Y. 322; Paddon v. Williams, 2 Abb. Pr. (N. S.) 88; Batesville v. Kauffman, 18 Wall. 154, 21 L.Ed. 776; Farwell v. Tyler, 5 Ia. 535; Wetmore v. Hegeman, 88 N.Y. 72; Pierson v. Cummings, 28 Ia. 344; Wetmore v. City, 44 Cal. 294; Gradwohl v. Harris, 29 Cal. 150; Schnier v. Fay, 12 Kan. 184; Williams v. Norton, 3 Kan. 290; Curtiss v. Mohr, 18 Wis. 615; Hilton v. Warning, 7 Wis. 492; Pomeroy's Remedies 130, 131 and 132. Seybold was the trustee of an express trust and as such could recover. McLaughlin v. Bank, 6 Dak. 406, 43 N.W. 715; Devol v. Barnes, 7 Hun. 342; Wetmore v. Hegeman, 88 N.Y. 72; § 4872, Comp. Laws. No defense was proven against the debt and it was a matter of no concern of defendant or intervener whether Seybold owned the certificate or held it for collection only. Giselman v. Starr, 106 Cal. 65, 40 P. 10; Wetmore v. Hegeman, 88 N.Y. 72; Cottle v. Cole, 20 Ia. 485; Price v. Dunlap, 5 Cal. 485; Gushee v. Leavitt, 5 Cal. 160; Caldwell v. Lawrence, 84 Ill. 161; Rice v. Savery, 22 Ia. 470. The reading of our statute and of the Iowa, New York and California Codes are the same. Section 4870, Comp. Laws; § 367, Deerings Code Civ. Pro. of California; § 449, Stovers Code Civ. Pro. of New York; § 3748, McClains Annotated Code of Iowa. Our Code being last adopted and modelled from those of California and New York, we must be considered as having taken the statute with the construction placed upon it by their courts. Jasper v. Hazen, 4 N.D. 4. That plaintiff is not the real party in interest, is new matter in abatement and should be affirmatively plead. Cottle v. Cole, 20 Ia. 485; Bowser v. Mattler, 36 N.E. 714; Felton v. Smith, 84 Ind. 485; State v. Ruhlman, II N.E. 793; Hereth v. Smith, 33 Ind. 514; Raymond v. Pritchard, 24 Ind. 318; James v. Chalmers, 6 N.Y. 209-215; Garrison v. Clark, 11 Ind. 369; Swift v. Elsworth, 10 Ind. 205, 71 Am. Dec. 316 and note; Pomeroy's Remedies, § 698 and 711; 17 Am. and Eng. Enc. L. 551; Price v. Dunlap, 5 Cal. 483; Gushee v. Leavitt, 5 Cal. 160; Caldwell v. Lawrence, 84 Ill. 161; 1 Enc. Pleading & Pr. 11; Laniar v. Trigg, 45 Am. Dec. 293; Varnum v. Taylor, 14 N.Y.S. 243; Spooner v. Delaware, 21 N.E. R. 696; Burnette v. Lyford, 28 P. 855; Gerrish v. Gray, 1 Allen, 213; Coburn v. Palmer, 8 Cush. 124; Smith v. Hall, 67 N.Y. 50; Poorman v. Mills, 36 Cal. 121; Denver v. Clark, 23 P. 209; Nat'l Distilling Co. v. Cream City, etc., 56 N.W. R. 864; Globe Reserve Mutual Life Ins. Co. v. Duffy, 25 At. Rep. 227; Robinson v. Robinson, 32 Mo.App. 88; Farwell v. Tyler, 5 Ia. 539. At the time this action was begun Hood was not administrator of the estate, and could make no claim to the funds in dispute. The rights of the parties must be determined by the facts as they stood at the time the cause of action accrued. Bates v. Wilbur, 10 Wis. 415; Newman v. Tymeson, 12 Wis. 448; Case v. Jewett, 13 Wis. 498; Meech v. Patchen, 14 N.J.L. 71; Louis v. Palmer, 28 N.J.L. 271; Colter v. Beckley, 30 Ohio St. 523; Nichols v. Michael, 23 N.J.L. 264; Allen v. Crary, 10 Wend. 349; Hamer v. Hathaway, 33 Cal. 117; Blue Valley Bank v. Clement 30 N.W. 64. Mrs. Hood by the gift of her son and upon delivery of the same became the absolute unconditional owner of the fund against all the world excepting only creditors of her donor. Section 3267, Comp. Laws; McGrath v. Reynolds, 116 Mass. 566; Gass v. Simpson, 4 Cold. (Tenn.) 297; Basket v. Hassell, 2 S. C. Rep. 418; Daniel v. Smith, 64 Cal. 346; Hamm v. Moore, 8 Ohio St. 242. There is no proof in the record that any claims have been proved against the M. C. Hood estate and there being no creditors this gift in view of death cannot be subjected to the control of the administrator. House v. Grant, 4 Lans, 296; 2 Deering's Cal. Code, 1153 and note; Basket v. Hassell, 2 S. C. Rep. 418, 107 U.S. 602; Dunn v. German American Bank, 18 S.W. 1141; Gass v. Simpson, 4 Cold, 288; Kiff v. Weaver, 94 N.C. 274, 55 Am. Rep. 601; 3 Pom. Eq. Jur. § 1147; Emery v. Clough, 63 N.H. 552, 56 Am. Rep. 543; Marshall v. Berry, 13 Allen 46; Parish v. Stone, 14 Pick. 204; Michenar v. Dale, 25 Penn. St. 64. This gift cannot be set aside in this action as a fraud upon creditors because the intervener has not exhausted his remedy at law and because Mrs. Hood is not a party to the suit. Wait's Fr. Conv. 68.
As originally instituted, the object of this action was to recover judgment against defendant, the Grand Forks National Bank, on a certificate of deposit issued by the bank to one John A. Greenlee. One of the points urged upon this appeal as a ground for reversal of the judgment in favor of the plaintiff and against the bank is that the plaintiff is not the real party in interest. The certificate of deposit was indorsed by Greenlee to R. R. Barrett, cashier, and by Barrett it was indorsed to the plaintiff. The indorsement to the plaintiff is in the following form: "Pay to the order of Jos. Seybold, cashier." The indorsements to Barrett, and by Barrett to plaintiff, were it is claimed, for collection; and therefore it is insisted that Greenlee, and not the plaintiff, is the real party interested under the Code. Rev. Codes, § 5221. That one who has the naked legal title to a chose in action may maintain an action upon it, under a statute which provides that an action must be brought by the real party in interest, is a doctrine supported by the almost unanimous voice of authority. Anderson v. Reardon, 46 Minn. 185, 48 N.W. 777; Elmquist v. Markoe, 45 Minn. 305, 47 N.W. 970; Sheridan v. Mayor, 68 N.Y. 30; Giselman v. Starr, 106 Cal. 651, 40 P. 8; Cottle v. Cole, 20 Iowa 481; Eaton v. Alger, 47 N.Y. 345; Knadler v. Sharp, 36 Iowa 232; Allen v. Brown, 44 N.Y. 228; Wetmore v. Hegeman, 88 N.Y. 69. Many other cases might be cited.
It is urged here that the indorsement of the certificate of deposit was merely for collection, and that therefore Seybold is only the agent of...
To continue reading
Request your trial