PIERCE v. TALBOT

Bills and Notes, Non-negotiable, Attested. Assignment. Practice, Civil, Parties. Limitations, Statute of.

A promissory note, secured by a mortgage, is not negotiable if it is payable in three years from its date "with the privilege of anticipating payment upon said sum in whole or in part at any time."

One who receives from the holder an attested overdue non-negotiable promissory note, bearing an indorsement making it payable to the order of such recipient, takes it as an assignee and may bring an action against its maker for his own benefit in the name of the payee, although the payee forbids him to do so; and such an action, under the provisions of R.L.c. 202, § 1, cl. 3, is not barred if it is brought within twenty years from the date when the note became due.

HAMMOND, J.

This is an action upon a witnessed promissory note, brought in the name of the original payee for the benefit of the holder, more than six years and less than twenty after the cause of action accrued. The sole defense is the statute of limitations (R.L.c. 202, § 1, cl. 3, and § 2), and the only question raised under that defense is whether the facts that the action was brought without the consent or knowledge of the payee and is now carried on against his will are fatal to it.

No discussion is necessary. The ground is covered by previous decisions of this court. The note is not negotiable. Stults v. Silva, 119 Mass. 137. Such a note is nevertheless within R.L.c. 202, § 1, cl. 3; Sibley v. Phelps, 6 Cush. 172; Commonwealth Ins. Co. v. Whitney, 1 Met. 21; and the time of limitation is twenty years. The note not being negotiable Temple holds it not as indorsee but as assignee. The respective rights of such holders are set out in Mosher v. Allen, 16 Mass. 451, 452, as follows: "If the payee of a promissory note, not negotiable, puts his name on the back thereof, intending to transfer it, he authorizes the prosecution of a suit in his name; for there is no other way of making the assignment effectual. But not so when the payee of a negotiable note indorses it; for that act transfers the property and the right of action, and is an assignment in law by the statute of Anne. The payee in such case has lost all property in the note, and all control over it. Certainly, without his consent, no action can be maintained upon it in his name." Inasmuch as the present action was brought for the benefit of an assignee, it was properly brought and can be maintained irrespective of the payee's consent. See Troeder v. Hyams, 153 Mass. 536, and cases cited.

Judgment affirmed.