Dalton City Co. v. Johnson , 57 Ga. 398 ( 1876 )

Bleckley, Judge.

1, 2. Though the case be in equity, the complainant, as a general rule, must have title, or the person in whom the title is vested must be a party : 2 Leading Cases in Equity, Part 2, page 242; 2 Kelly, 424; 3 Ibid., 161; 1 Ibid., 236; 10 Georgia Reports, 329. Under the Code, all ehoses in action arising upon contract are assignable: Code, section 2244. Are the notes set forth in this bill available to the Dalton City Company, in an action brought in its own name, against the debtor ? The answer to this question depends, first, upon whether the notes are payable to that company; second» whether, if they are not, they contain words rendering them negotiable without being indorsed or assigned; and, third, whether, supposing it to be necessary, any indorsement or assignment appears. On their face, the note are payable, not to the Dalton City Company, but to the Dalton and Gadsden Railroad Com party. As we understand the record, they came into existence thus: The city company conveyed land to certain trustees, in trust for the railroad company. For a part of this land, sold by the trustees, the notes were given. The bill alleges that they were made payable to the railroad company by mistake, the intention having been to make them payable to the trustees; but the allegation is unsupported by any evidence, and is directly contradicted by the answer. Suppose, however, that the allegation were proved, it would not put title, either legal or equitable, into the city company, the complainant. The trust, we may infer, in the absence of anything showing to the contrary, was net for the benefit of that company, but for the benefit of the railroad company. So that if the notes had been made payable to the trustees, the complainant would still have been a stranger to them. The notes contain no negotiable words, and they are not indorsed. Neither does any assignment of them appear, unless ■it can be collected from one or both of two certain writings set out in the evidence, embracing terms of settlement, or partial settlement, between the two companies. The first of these writings provided, expressly, that the complainant was to have railroad stock for all the lands which had been sold. These notes then existed, and the land for which they were given had, of course, then been sold. There is no intimation that there was any purpose to pay the complainant twice for this particular portion of the land, once in railroad stock and again in the notes covering the price. But the stipulation to pay in railroad stock is unmistakable. It follows, we think, that the writing containing that stipulation cannot be construed as an assignment of these notes. Certainly, the notes 'are nowhere mentioned in it. The second of the two writings neither" identifies them as the property of the complainant, nor assigns them. That writing was executed after all the trustees had signed a deed conveying to the maker of these particular notes the land for which they were given. So, we think, the record is to be understood. But be this comparison of dates correct or not, to what extent does the second writing deal with notes given for land? It provides that the complainant is to convey land to the holders of bonds for title as fast as the notes are paid. None of the notes are specified or described, nor is it said to whom they are to be paid. Why should they not be paid to the payee, that is, to the railroad company? There surely is no inconsistency between what is stipulated' and leaving the ownership of the notes in that company; more especially, when it is remembered that, by the previous instrument, it was settled that-the complainant was to have for the land which had then been sold, not money or notes, but railroad stock. We do not find in either of the two writings, or in both together, any assignment, express or implied, of the notes involved in the present cause.

3. There is evidence in the record tending to show that the notes were paid, or partially paid, while they were in the hands of the railroad company. There is also evidence, on the part of the complainant, tending to show a contract between the complainant and the defendant, by which the latter undertook to pay the notes to the former, receiving for the undertaking a valuable consideration. This transaction between the parties themselves is said (to be sufficient to estop the defendant from taking the benefit, as against the complainant, of any payment which had before been made to the railroad company. The suggestion is, that having recognized the notes as subsisting debts, and having, as a consequence of that recognition, obtained the complainant’s money, the defendant cannot now be heard to say that the notes were previously extinguished, in whole or in part. It is further suggested that the want of any assignment of the notes from the payee to the complainant, is supplied by this direct undertaking of the defendant to pay them to the complainant. The two-fold purpose of cutting oft the defense of payment (which is set up in the answer) and of excluding all question of the complainant’s title to the notes, is thus said to be accomplished, But neither the contract nor the consideration for it is alleged in the bill. The bill is a suit upon the notes, and not upon the contract with the complainant to pay them: 10 Georgia Reports, 329.

4. There is certainly a well established doctrine in the law that admissions acted upon in acquiring ahoses in action will estop the debtor from setting up prior payment: 2 Leading Cases in Equity, Part 2, page 237. But the present case is •not one to which the doctrine applies, for both thepnstruments examined under the first head of this opinion were executed before the debtor made any admission to the complainant in respect to these notes. If these instruments were sufficient to pass title to the notes into the complainant, the complainant already had title when the alleged admissions were made. If they were not sufficient (and we have seen they were uot) then the evidence fails to show any purchase of the notes by the complainant, either before or after the making of the admissions. The very truth of the matter is, that we are unable to discover from the record when or how the notes became the complainant’s property.

Judgment reversed.