Easterly v. National Exchange Bank of Auburn

Gilbert, J. A legal title or right to the possession is indispensable to the maintenance of an action to recover the possession of personal property. Fulton v. Fulton, 48 Barb. 589; Faulkner v. Brown, 13 Wend. 63; Code, § 207. Conceding that the plaintiff, upon his paying the debt for which he was liable as surety, was entitled to the securities held by the creditor, yet such payment did not ipso facto operate as an assignment or transfer of the legal title to them. Its effect was only to give the plaintiff a right, in equity, to require an assignment of them. 1 Lead. Cas. in Eq. (3d Am. ed.) 145. That right could be ascertained only in a suit in which the creditor and the co-sureties were parties. The case shows that the defendant had recovered a judgment against the, plaintiff, upon his indebtedness as such surety, April 13, 1870that said judgment was satisfied by him June 23, 1870. Meantime, the creditor had assigned the judgment and the securities in question to a stranger, who purchased the same at the instance and for the benefit of another surety. The latter was liable before the plaintiff, but, at the time the liability of the plaintiff was discharged, the judgment and the securities were held under that assignment. These facts form an insuperable bar to a recovery in this action, because, first, the plaintiff has no cause of action at law; and, sec [368] ond, a court of equity cannot determine the case without the presence of the assignee and the other sureties, as parties, or without having before them appropriate averments in the complaint. The court below properly directed a verdict for the defendant, and judgment should be entered in accordance therewith, with costs. Judgment accordingly.