Opinion
December Term, 1825.
A vendee or assignee cannot sue in his own name for property which the vendor or assignor, at the time of sale, could only recover by a suit.
TROVER for the value of a negro girl. On the trial before Daniel J., at GATES, the plaintiff produced a bill of sale, executed by the defendant to one Voight, dated 28 July, 1824, and a bill of sale from Voight to himself, dated 4 August, 1824, for the negro girl. (30)
L. Martin for appellant. (33)
The subscribing witness to the last bill of sale deposed that at the time of its execution Voight informed the plaintiff that he did not have possession of the negro, nor did he know that he should ever be able to get possession of her again; that the defendant, before the date of the bill of sale from Voight, sent for the negro, and took her into his possession, claiming her as his property, and that she remained in his possession until defendant sold her to a person who carried her out of the State.
The court instructed the jury that if the defendant had the adverse possession of the negro when Voight sold her to the plaintiff, then the plaintiff could not recover; Voight had but a right of action, which, if purchased by the plaintiff, would not enable him to maintain an action at law. There was a verdict for the defendant, and on the appeal of the plaintiff the case here stood upon a rule to show cause why there should not be a new trial.
At the time when Voight sold the slave to the plaintiff, the defendant had the possession, claiming it adversely against all the world; and the question is whether this chose in action is assignable, so as to enable the plaintiff to sue in his own name. For a chose in action comprehends specific chattels, as well as the right to recover a debt or damages, and extends to every sort of chattel property of which a man hath not the actual occupation, but a bare right to occupy it, and a suit in law is necessary to recover the possession, on account of an adversary claim.
The distinction in our law between choses in action and possession corresponds with a similar one in the civil and canon laws, in which property in possession is termed jus in re, property in action jus ad rem. It is a settled maxim of the common law that no chose in action can be granted or assigned, founded upon the policy of preventing an increase of lawsuits, by restraining those who would not assert their own rights from transferring them to others of a more litigious disposition. The rule was doubtless more extensive than any mischief that could be apprehended; and it has accordingly been limited by various exceptions, as by the law merchant relative to bills of exchange, and in some instances respondentia bonds, by the acts making bonds and notes negotiable, and to the equitable sanction which is given to the assignment of choses in action for a valuable consideration. In many respects the rule at law is merely formal; for it is held that policies of insurance and judgments may be sued for by the assignee in the name of the original claimant. But I know of no authority for the position that a vendee or assignee may sue for property in his own name which the vendor or assignor, at the time of sale, could only recover by suit. It seems to me that (34) much of the mischief which the rule aimed originally to prevent would still arise under such a practice; and it is not called for by the necessity of trade or commerce, or any of those causes which introduced the relaxations. Morgan v. Bradley, 10 N.C. 559, was determined on its own peculiar circumstances; a steer was turned out in the range a very short time before the sale, at which time both the vendor and the vendee believed it to be still there, and when driven up by the defendant with his own cattle he believed the steer to be one of them. The possession at that time proceeded from mistake, and could scarcely be considered adverse. The judgment must be
Affirmed.