Overstreet v. Nunn's Executors , 36 Ala. 649 ( 1860 )

R. W. WALKER, J.

In considering the propriety of the general charge which the court gave the jury, we place out of view, -without inquiring into its admissibility, tbe evidence of tbe declarations of Nunn, to tbe effect that the note sued for was to be returned to the plaintiff, on his repayment of the money borrowed from Nunn. We do this, because, in our opinion, the result is the same, whether that evidence be regarded or not.

It was undoubtedly competent to prove the consideration upon which the endorsement was'made. Indeed, no objection was made to the evidence that the note was endorsed and delivered to Nunn as collateral security for the plaintiff’s note to him. Nor can it be doubted that as betw.een the original parties to the ' endorsement and their legal representatives, the payment by the plaintiff of his note to Nunn operated, propria vigore, -a retransfer to the plaintiff of the entire beneficial interest in, and of the right to the possession of the note on Wagner. — Appleton v. Donaldson, 3 Barr, 381, 388; Ins. Co. v. Smith, 11 Penn. 120, 127.

It, is true that, as the,law stood before the Code, a suit against the maker of the note, for the recovery of the money due on it, would have to be brought in the name of the endorsee. But this does not prove that the property in the note itself, or the right to the possession of it, would belong to the- endorsee. The Code provides, that actions upon contracts for the payment of money must be in the name of the party really interested. Until this change in the law, the property in a note, and tbe right to possession of it, might belong to one person, although a suit upon the note, against the maker, would have to be brought in tbe name of another. Thus, if the payee of a note should, for a valuable consideration, transfer it by delivery to another persou, and should afterwards obtain possession of it by finding, or otherwise;. it cannot be doubted, that bo’th the property and the right of posses* sion would be in the transferree; and if the payee should refuse to deliver it on demand, he would be liable in trover at the suit of the transferree.

The proof showed, that the plaintiff' demanded the note of the defendant before the suit was brought, and that the latter refused to deliver it. We think that, on the facts, trover can be maintained. — See Donnell v. Thompson, 13 Ala. 444; Clowes v. Hardy, 12 Johns. 486; Lowremore v. Berry, 19 Ala. 130.

Judgment reversed, and cause remanded.