Clapp v. Shepard , 43 Mass. 127 ( 1840 )

Wilde, J.

This case was argued at a former term, on de murrer to the bill. Two causes of demurrer were assigned: 1st. That the court had no jurisdiction : 2d. That the bill was defective in not stating specifically in what manner the plaintiff derived his title to the note now claimed by him, and which the defendants were charged with having taken away and con cealed. Upon the facts alleged, the court were of opinion that they had jurisdiction, but that the bill was defective for the cause assigned. 23 Pick. 228.

The bill has been since amended, and Shepard, one of the defendants, has filed his answer to the amended bill. Porter, the other defendant, having neglected to file an answer, the bill as to him is to be taken pro confesso. Against him, therefore, we are of opinion that the plaintiff is entitled to relief. The only doubt is whether the plaintiff has set forth in his bill such a title to the note in question, as would enable him to maintain an action of replevin therefor. He claims title under an award of arbitrators, assigning this and sundry other notes to him, and a decree of this court, ordering a specific performance of the award. But the award did not operate as an assignment of the notes. Either party had a right to contest the award ; and the remedy against the party refusing to perform it was by an action on the arbitration bond, or by compelling the specific performance of the awa~d. The plaintiff has elected to pursue the lat ter remedy, by a former bill; but it does not appear that the defendant has been compelled to comply with the decree of the court in that suit.

It is however averred in the present bill, “ that after the award by said arbitrators, the said Joseph Porter unlawfully took from the plaintiff the said note against the said Shepard.” This averment must be taken to be true. If Porter had any right or authority to take the note, he should have shown it in defence ; and without such proof, he must be regarded as a stranger. And we can have no doubt, that a party, having the possession of a note or other security, to which he has only an equitable title, may maintain trespass or replevin against a mere stranger, or any one who has not a better title.

But this reasoning and conclusion will not hold good with re gard to Shepard, the other defendant. The admission of Porter, either express or implied, is no evidence against Shepard. And there is no proof that the plaintiff ever had possession of the note in question, nor that it was taken from him by Porter. On the contrary, Samuel Howe testifies that after the award, he, as agent of the plaintiff, went to the place where the papers had been deposited at ti e hearing, for the purpose of taking away those which had been awarded to the plaintiff; and that he was informed, on inquiry, that Joseph Porter, the defendant, had taken them away. He was the agent and attorney of John H Porter, to whom the note in question was payable, and who consequently had the legal title to it.

Now nothing can be more clear than the rule of law, that an equitable assignee of a chose in action cannot maintain an action upon it in his own name. He is not considered in law as the owner, and consequently cannot maintain an action of replevin to recover possession of it against the legal owner.

If this defence had been made by Joseph Porter, it must have prevailed, as he had a right, acting as the attorney of John H. Porter, to retain possession of the notes awarded to the plaintiff, whose remedy was either upon the arbitration bond, or by compelling the performance of the award according to the decree of this court. And if both of these remedies had failed, that which is now sought could not have been allowed. The doctrine of courts of equity, that whatever has been agreed to be done is to be considered as done, does not apply to the present case.

In order to maintain this bill, the plaintiff must show that he had a legal right to maintain an action of replevin, and that such an action could not be effectually prosecuted, by reason of the concealment of the note by the defendants. This, in respect to Shepard, he has failed to do, and cannot therefore maintain this suit against him.

There is another ground of defence, which would prevail, although it were shown that Joseph Porter took the note from the plaintiff’s possession, as is alleged in the bill. In Shepard’s answer, it is alleged, that about the 28th of June, 1838, he received from Hobart & Cummings of Bost'n, a letter, informing him that said note was in their hands, and demanding payment thereof; that he soon after called on said Hobart & Cummings, and found said note in their possession, indorsed in blank by John H. Porter, by his attorney Joseph Porter; and that he afterwards paid the amount of said note to said Hobart & Cummings, and took it up —which note is annexed to the answer.

There is perhaps no sufficient proof of these facts, but they were not denied, and, as I understood at the argument, they were conceded by the plaintiff’s counsel. The same facts, substantially, are admitted in writing, in the plaintiff’s action against another defendant.^*

Now upon these facts, Shepard would not be liable, notwithstanding Joseph Porter had taken the note unlawfully, unless he knew that Hobart & Cummings took the note with knowledge of the unlawful taking by Porter, which is denied in the answer, and which it is incumbent on the plaintiff to prove ; otherwise, Hobart & Cummings must -be considered as the bona fide holders of the note. If, however, the case depended on this ground of defence, Hobart & Cummings should be parties to the bill, and further evidence might be required to ascertain the fact.

There is also another ground of defence, which appears to us conclusive. Before the bill was filed, Shepard had paid his note, and it is immaterial whether it was paid to Hobart & Cummings, or to Joseph Porter. The latter was the attorney of John H. Porter, the legal owner of the note. This was a valid payment, notwithstanding the previous notice of the award. For the award transferred to the plaintiff no title to the notes awarded to him. Before the performance of the award, either party had a right to contest its validity. If the defendant had refused to pay Hobart and Cummings, and an action had been brought against him in the name of John H. Porter, it is very clear that the award would not have availed him in his defence. It is not necessary, however, for the defendant Shepard to rely on these grounds of defence, as the plaintiff has failed to prove such a title as would enable him to maintain an action of replevin ; and without such proof this suit cannot be sustained.

Bill dismissed as to Shepard.

* Other similar bills were filed by the plaintiff against several different de fendants, and the cases were argued at this term, on various grounds of law and evidence, by Leland, for the plaintiff, and by Cushing, D. A. Simmons, fy E. Ames, for the respective defendants. Those cases were settled by the decision in the text.