Mckinney v. Estate of Hamilton , 53 Mich. 497 ( 1884 )

Campbell, J.

In this case the claimant undertook to prosecute a claim against an estate upon a negotiable instrument which was in possession of another person claiming title to it and having the usual marks of ownership. The same cause of-action had been presented by her for allowance, and in this way the paper came within the reach of the court, but in her controversy and subject to her claim of ownership. The circuit court of Ionia county, to which the case had been appealed, refused on the trial to allow plaintiff to recover.

We think this ruling was correct. The other claimant of the note was a stranger to this controversy between plaintiff and the estate, and could not be brought into it. This suit, after reaching the circuit court, is in all respects equivalent to a common-law action and subject to the same substantial rules, inasmuch as the cause of action is a common-law right. The rule has always been settled that a person who seeks to recover on such a written agreement as the one involved here must be prepared to produce it and have it before the court on the trial so as to be properly marked and impounded, if necessary, and identified with the judgment and delivered up if satisfied. This rule had no exceptions unless by the order of a court of equity, on full indemnification the owner who had lost it should be permitted to sue without its production. Our statutes have supplied a similar remedy in the same suit. But unless a plaintiff sues as on a lost note, and brings himself within the exemption afforded by equity or by the statute, the rule is fixed.

It is not a rule of technicality but of justice, and no case presents a fuller illustration of it than the present. There are two rival claimants for this note, and both sue. J There is no legal method of settling the mutual rights of the several claimants in this controversy. The holder of the note, having the legal title, as it appears on its face, must recover unless defendant can show she does not own it, and of this showing the jury must be satisfied. Another jury, at the suit of this plaintiff, might take a different view of the case as presented to them, and give a second judgment against the estate. This result might be attained either by failures in testimony, or different views of the credit of witnesses, or collusion. The plaintiff should have resorted to such proceedings against the other claimant as would have bound her, and protected the estate against a double litigation. The evidence which will destroy her claims, if there is any such evidence, is within his knowledge and reach. lie cannot throw upon the estate the burden of fighting his battles. It is, as already stated, the purpose of the rule referred to, to prevent just- such complications as we are asked to create by overruling the action of the circuit court. We are not called on to advise what remedy plaintiff may yet have against the other claimant, or to consider the point which is hinted at in the record, of the position of these conflicting claimants concerning some questionable transactions. But we agree with the circuit court that no recovery can be had here.

The possession of the note by the circuit court does not affect the case, as it belonged to the party who filed it, until taken from her by some proper proceeding. The circuit court could not in any summary way dispose of her rights. It is not enough for the plaintiff to show the note as possessed or claimed by any one else. He must be able to produce it as controlling it, and as able to protect the defendant from having it produced by some one else with a better apparent title than his own.

The judgment must be affirmed.

Cooley, O. J. and Champlin, J. concurred.