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MARTIN v. YAZOO DELTA MTG. CO

Supreme Court of Mississippi, Division A.

Apr 9, 1928

Judgment

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CITATION CODES

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DOCKET NO.

No. 26971.

Attorney(S)

Maynard, FitzGerald Venable, for appellant. In an action in a law court the plaintiff, in order to sustain his cause of action, has to plead and prove as an essential element in his case a legal title to the subject-matter of the litigation. St. Paul Fire Ins. Co. v. Auto Co., 121 Miss. 745; Eckford v. Hogan, 44 Miss. 398. The court will notice from the record that the notes are payable to the Planters' Bank, or order. The promise of appellant was to pay to the Planters' Bank, or order. This was his contract. The Planters' Bank never endorsed the notes. The plea of general issue of non assumpsit puts in issue the plaintiff's title to the notes. Under the plea of general issue of non assumpsit, every allegation of the declaration, except the character in which plaintiff sues, is put in issue, and under this plea defendant may show that plaintiff has no interest in the suit. Moore v. Anderson, 3 S. M. 321; Anderson v. Leland, 46 Miss. 290. The plea of general issue of non assumpsit is applicable to suits on promissory notes. 8 C.J., p. 910, sec. 1195. The plea of general issue of non assumpsit puts in issue plaintiff's title to the notes. Anderson v. Patrick, 7 How. 347; Bingham v. Sessions, 6 S. M. 13; Zellerville Boyd v. Stevens, 2 How. 642; Hawkins v. R.R. Co., 35 Miss. 691; Bacon v. Cohea, 12 S. M. 516; Grand Gulf Bank v. Wood, 12 S. M. 482; Scott v. Metcalf, 13 S. M. 563. To similar effect is Negotiable Instruments Law, sec. 31; sec. 2785, Hem. Code 1927. It is obvious from the above authorities that the Yazoo Delta Mortgage Company, the notes not being endorsed, had no legal title to the papers, and could not sue thereon in its own name. It was incumbent on the Yazoo Delta Mortgage Company, in order to recover, to prove title. The record shows this was not done. There is no evidence of any title in the Yazoo Delta Mortgage Company. From these principles it follows also that the ownership of the notes being in issue, the defendant, under the general issue plea, should have the right to introduce evidence to show that plaintiff has no title to the paper sued upon Moore v. Anderson, and Anderson v. Leland, supra. There is nothing in sec. 527, Code of 1917, sec. 541, Hem. Code 1927, to alter the above rule. Saenger Amusement Co. v. Murray, 128 Miss. 702; Fitch v. Asher, 56 Miss. 571. Roberson Cook, for appellee. The appellant contends that the court below erred in sustaining an objection to proof offered by him which, as he says, would tend to show that the plaintiff, individually, did not own the notes sued upon. It will be observed by the court that the plaintiff did not assert in its declaration that it was the owner of the notes sued upon, but that it was acting for the benefit of the payee of the notes. The proof which was objected to in the court below did not tend to show that some other person was the owner of the notes but only tended to show that the usee was the owner of the notes. This proof, of course, was of no benefit to the appellant and was properly excluded. This same question has been presented to the court in the case now pending before the court, styled Yazoo Delta Mortgage Company, Liquidating Agent, v. W.G. Harlow et al. We respectfully refer the court to the brief for the appellant in that case touching this question.

JUDGES

McGOWEN, J.

ACTS

No Acts

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Important Paras

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1. BILLS AND NOTES. General issue raises issue of title, and introduction of note without indorsement does not show title of liquidating agent suing on note.

In action by liquidating agent for bank seeking a recovery on note, wherein defendant filed a plea of general issue, peremptory instruction was erroneously granted plaintiff after introduction of note payable to bank without any indorsement thereon, since plea of general issue put in issue plaintiff's title to property, and introduction of note without indorsement failed to show that liquidating agent had any sort of title thereto.

2. PLEADING. Unverified plea of general issue did not put in issue allegation of plaintiff's official character as liquidating agent ( Hemingway's Code 1927, section 1706).

Where defendant in action on note by liquidating agent for bank did not file a sworn plea in accordance with Code 1906, section 1974 (Hemingway's Code 1927, section 1706), allegation of official character as liquidating agent by plaintiff's bank was not put in issue by plea of general issue.

3. BILLS AND NOTES. Liquidating agent suing on notes payable to bank had burden of proving title.

Liquidating agent of bank, pursuant to appointment of chancery court, suing on notes payable to order of bank, has burden of proving title sufficient to authorize action.

McGOWEN, J.

Appellee, the Yazoo Delta Mortgage Company, as liquidating agent for the Planters' Bank of Clarksdale, Miss., suing for the sole use and benefit of said Planters' Bank, filed its declaration against J.A. Martin, seeking a recovery in the sum of six thousand six hundred sixty-six dollars and sixty-seven cents, with interest and attorney's fees, the basis of said suit being three notes executed by Martin, aggregating said sum and payable to the order of the Planters' Bank of Clarksdale, Miss.

Judgment for the plaintiff, on a peremptory instruction, was rendered in the court below, and Martin, defendant in the court below, appeals here, assigning several errors; but we shall notice only one.

On the trial of the cause, the plaintiff, appellee here, introduced the three notes payable to the order of the Planters' Bank, signed by Martin, and rested. The notes, as exhibited, contained no indorsement whatever. In other words, they appeared, on their face, to be the property of the Planters' Bank of Clarksdale, Miss., and it did not appear from the evidence that the Yazoo Delta Mortgage Company had any sort of title to said notes.

The peremptory instruction should not have been given for the plaintiff in this state of the record.

The appellant, defendant in the court below, filed a plea of the general issue, which, under the general rule, put in issue plaintiff's title to the property, and plaintiff made no effort to show any right of action in it. True it is that it was alleged in the declaration that it was the liquidating agent of the Planters' Bank, by appointment of the chancery court, but this allegation of its official character was not put in issue by the general issue plea, because there was no sworn plea filed by the defendant in the court below, in accordance with section 1706, Hemingway's 1927 Code (section 1974, Code of 1906). The official character of the plaintiff is one thing, and the right to bring action, title to the cause of action, is quite another thing.

The title to the note must be shown by assignment, in writing, or by decree of a court, no statute being cited to us as conferring title and power to sue herein. The burden was on the plaintiff, and, while, ordinarily, the introduction of the notes would have met this burden, yet the notes involved in this suit were negotiable instruments payable to order, with no indorsement thereon by the Planters' Bank, or anybody else, so that the proof offered showed clearly that the plaintiff, the Yazoo Delta Mortgage Company, had no title thereto, and if judgment had been rendered in favor of the defendant in this suit, the Planters' Bank would not have been barred as a result thereof.

The plaintiff not only did not prove its case, but declined to permit the defendant to prove same for it. The case of Anderson v. Leland, 46 Miss. 290, is in point, and controls here. Likewise, St. Paul Fire Marine Ins. Co. v. Daniel Auto Co., 121 Miss. 745, 83 So. 807; Eckford v. Hogan, 44 Miss. 398; Anderson v. Patrick, 7 How. (Miss.) 347; Bingham v. Sessions, 6 Smedes M. 13; 8 C.J. 910, section 1195; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459.

As it is obvious that appellee, plaintiff in the court below, confuses the character of plaintiff as compared with the right and title of plaintiff, we think the case should be sent back for another trial in order that justice may be done.

Reversed and remanded.