Skinner v. Bedell's Adm'r , 32 Ala. 44 ( 1858 )

WALKER, J.

English Brewer was the obligee of the bond sued upon, and assigned it to David Skinner and David Burks. David Burks assigned his interest to Francis A. Gibbs. Skinner and Gibbs both died before the commencement of the suit, and the administrators of the two are joined as plaintiffs. The question is, was the suit maintainable by the plaintiffs who brought the same.

By the Code, as well as by the pre-existing law in this State, the bond sued upon was capable of assignment, so as to invest the assignees with the legal title. — Code, § 1530; Clay’s Digest, 383, § 12; Brown v. Chambers, 12 Ala. 697. But the plaintiffs in this case have not the legal title to the bond, for two reasons: first, because the right of action would be in the representative of the survivor of the assignees, if there had been a regular assignment of the legal title to the two; and secondly, because one joint assignee, there being no relation of partnership, cannot, by his separate act, transfer the legal title to his moiety. — Beebee v. Brewer, Minor, 364; Callison v. Little, 2 Porter, 89; Boyd v. Martin, 10 Ala. 700; Gayle v. Martin, 3 Ala. 593; 1 Chitty on Pleadings, 19 ; Bayley on Bills, 51; Smith v. Whiting, 9 Mass. 334; Story on Promissory Notes, § 125; Carvick v. Vickery, Douglass’ Rep. 31, app. It follows that this action cannot be maintained, unless it be under some statute.

Section 2129 of the Code requires actions on promissory notes, bonds, or other contracts, express or implied, for the payment of money, to be brought in the name of the party really interested, whether he have the legal title or not. This section limits its operation to contracts “for the payment of money.’'' A penal bond, conditioned to be void if the obligor shall perform a certain act, or discharge a certain duty, is not a contract for the payment of money. It is a contract for the performance of an act or duty, and the measure of an actual recovery upon it is the damages sustained by the non-performance of the act or duty. The condition of the bond was, that the obligor “should make title to the land, provided he received them, and if not, he was to assign over the approved contract, and if so that title could not be got by the obligor, he was to refund the purchase-money.” So far as this contract imposed an obligation to make titles to the land, or to assign over the approved contract, it was a contract for the performance of an act, not a contract for the payment of money, and, therefore, not susceptible of suit in the name of one destitute of the legal title. To the extent to which the complaint counts upon a failure to make title, or to assign over the approved contract, it was therefore bad on demurrer.

But it is also alleged in the complaint, that the obligor in his lifetime did not get, and was not able to get, titles to the land; and that his representative since his death has not got, and has been unable to get, titles to the land; and that the deceased in his lifetime had no title, and was unable to make title; and that the’ administrator, since his death, had no title, and was unable to make title. Although no time is stipulated by which the purchase-money was to be refunded if titles could not be got, yet we are to imply that it was to be done in a reasonble time. Dickson v. Briggs, 12 Ala. 217. And as the complaint shows that a reasonable time had expired, and that title bad not been got, up to tbe commencement of the suit, and that the purchase-money was not refunded, a suable breach of the bond is alleged. The bond is dated in August, 1837, which the record discloses must have been about 16 years before the commencement of the suit. W© must intend that sixteen years was, prima facie, a reasonable time within which to get the titles. — Garnett v. Yoe, 17 Ala. 74; Allen v. Green, 19 Ala. 34. If there exist circumstances proving that it was not a reasonable time, and titles can in fact yet be got, it will be appropriate matter for a plea.

In the contingency that the title could not be got, the contract of the obligor was to pay money. The complaint shows the existence of that fact upon which the contract became an obligation to refund the purchase-money. So far as the complaint relies upon the failure to pay the purchase-money, because the titles could not be got, the plaintiffs are in a situation to maintain the suit, although they are without the legal title. -’Where a chose in action has been assigned to two, both of whom are dead, the real interest is not in the representative of the survivor alone, but in the representatives of both the assignees. For these reasons we hold, that the action was properly brought, for the recovery of the purchase-money and interest, in the names of the two plaintiffs jointly.

The court erred in sustaining the demurrer to the entire declaration; and for that error, the judgment of the court below is reversed, and the cause remanded.

Rioe, C. J. not sitting.