Newsom v. . Russell

.Bynum, J. A voluntary assignment of a promissory .note ■without consideration and for the benefit of the assignor has no legal effect except to constitute an agency to collect, and such assignee not being the real party in interest cannot bring a suit on such note in his own name. Abrams v. Cureton, 74 N. C. 523. The case before us differs essentially from Abrams v. Cureton, because in this, the assignment is for a valuable consideration and is not for the benefit of the assignors. As between the assignors and the plaintiff, both the legal and equitable title passed ; and the money wrhen collected will be unaffected by any claim or trust in favor of the assignors. They are estopped, and the notes as to them are the absolute property of the plaintiff, whether with or without consideration in fact. To disprove that the plaintiff was the real party in interest, the defendant. alleged and offered to show that the assignment was either without consideration or in fraud of the rights of creditors, having been ■ made only a few days before the assignors bad been adjudicated bankrupts. The evidence offered for this purpose was ruled out by the Court as immaterial. This was not error. In an action by the assignee of a note against the maker, it is no defence to show that the assignment -was made with the intent to defraud the creditors of the assignor. As the assignor participates in the fraud, he cannot repudiate his transfer, and has parted with all his interest in the note. It is not the duty of the maker of the note to see to the application of the money, and it is even less his .duty to fight the battle of the creditors of the bankrupt. What interest is it to him, if he is absolved *279 from further liability by payment of his debt upon a judg■ment regularly obtained against him ? ■ If the creditors of the bankrupt had any claim upon these notes^which they could vindicate, it was their duty themselves or by the assignee in bankruptcy to interpose in this action. It may he that they have no claim upon these notes, or if they have a claim, that they will never assert it; and thus if the defendants are allowed to show that the assignment was fraudulent as to creditors so as to defeat this action, the result might be that the defendants would altogether escape the payment of a debt they acknowledge to ■be due and unpaid ; for the decision of the question, fraud •or no fraud, in this action where neither the creditors nor the assignee of the bankrupt are parties, would not be conclusive or even evidence in an action by the assignee in bankruptcy against the plaintiff in this action for the notes or their value. We have been able to find but one decision directly in point, and that is Roher v. Turrill, 4 Minn. 407, where it is .expressly held that it is no defence to show that the assignment was made with intent to defraud creditors. Pomeroy -on Remedies, § 131. There is no error. PER Curiam. Judgment affirmed.