Willis v. Neal , 39 Ala. 464 ( 1864 )

PHELAN, J.

In this case, Y. D. Stoudenmeier, wbo was one of tbe payees in tbe note, and also one of tbe makers or payors, assigned bis interest to another one of tbe payees, who instituted suit against 'Willis, wbo was one of the makers of tbe note, omitting to sue Y. D. Stouden-meier, tbe other maker. These facts were pleaded in bar of tbe action, and to this plea there was a demurrer, which tbe court sustained. This presents tbe question now before tbe court.

Before tbe passage of section 2129 of tbe Code, if Y. D. Stoudenmeier, one of tbe payees, bad assigned or transferred bis interest in tbe note to another of tbe payees, or to any other individual, as be bad full right to do, it would only have been a transfer conveying an equitable title to bis interest; and his name, as one of tbe payees, would still have to be used in any suit upon tbe note. But, by section 2129, it is declared that “every action, founded upon a promissory note, bond, or other contract, express or implied, for tbe payment of money, must be prosecuted in tbe name of the. party really interested, whether be have tbe legal title or not”, &c. This statute is evidently designed to abolish equitable titles generated by tbe. transfer of all contracts, “express or implied, for tbe payment of money”; and to make all such titles legal titles, by declaring that all suits, “founded” upon such “contracts, must be prosecuted,” not in'tbe name' of tbe assignor, for tbe use of tbe assignee, as heretofore ; but “in tbe name of tbe party really interested,” Open accounts, and all other interests which have been assigned or transferred, according to that statute, “ must” now be prosecuted in tbe name of tbe party really interested; that is, of course, tbe party to whom they have been assigned.

After tbe assignment of bis part interest in tbe note to another by Y. L. Stoudenmeier, bad tbe suit been still prosecuted in bis name, and not in tbe name of bis assignee, this could have been pleaded in bar of tbe action, and the plea must have been held good, or there can be neither force nor virtue in tbe law as established by section 2129. That be could not sue, or that bis name could not be used for tbe benefit of bis assignee, is manifest; and that tbe party to whom he assigned his interest, with the other payees who held the remaining interest, could sue, and “must” sue, and are the only persons who will be allowed to maintain a suit on the note, we think equally clear. The action, then, was properly brought by the payee to whom he assigned his interest, with the other payees as plaintiffs, dropping his name ; they being clearly the parties, and all the parties, “really interested” in the note.—27 Ala. R. 208; 29 Ala. R. 294.

But Y. D. Stoudenmeier was also one of the makers. This can not affect the question. The owners of the note — in the words of the statute, the parties “really interested”— having the right to sue, and being compelled to sue; in their own names, had the further right to sue in that form any one or more of the makers of the note, at their pleasure. The statute (Code, § 2143) declares, that “When two or more persons are jointly bound by judgment, bond, covenant, or promise'in writing, of any description whatsoever, the obligation is, in law, several, as well as joint; and suit may be instituted thereon against the representatives of such as are dead.”

Since 1818, when the statute which now forms in substance this section of the Code, was first passed, it has been the uniform practice for the holders of all bonds, promissory notes, &c., to bring and maintain actions upon them, against any one or more of the makers, at their pleasure. This was all that was done in the present case: the holders omitted to sue one of the makers, Y. D. Stouden-meier, and brought suit against Willis, the other maker, only.

We were somewhat inclined, at first, to think with the counsel for appellee, that the case of Lacy v. LeBruce, (6 Ala. 904,) furnished an analogy and an authority for the manner in which this suit was instituted, irrespective of the provisions of section 2129 of the Code; but, upon more reflection, we prefer to place our decision upon the force of that statute entirely. The court, in that case, go upon the ground, that the death of the common partner was an assignment of his interest, by operation of law, to the other partners, and this gave a complete right to sue at law. • The difference between tbat case and tbis would be, tbat bere tbe joint payee, wbo assigns bis interest, is still Hying; and tbis would make it necessary tbat bis name should be used, as tbe law stood before tbe passage of tbe Code, as one of tbe plaintiffs in tbe suit, even saying tbat tbat could be allowed where only a part interest bad been assigned by one payee to bis co-payees in tbe note; which is doubtful.

Tbe judgment below is affirmed.