Burch v. Daniel

Lumpkin, P. J. In order to authorize one to institute and maintain in his own name an action upon a promissory note, the legal title to the paper must be in the plaintiff. [229] This was an action by Daniel upon promissory notes which were originally payable to John A. Fretwell, or order. Upon each of the notes was written the following transfer: “For value received, I hereby sell and transfer the within note to C. S. Pope, without recourse on me. J. A. Fretwell. ” Without the knowledge or consent of the makers of the notes, the word “order” had been in each of them erased, and the word “bearer” substituted in ' its stead, before the action was brought; though it does not appear when or by whom these alterations had been made, or that this had occurred before Daniel, the plaintiff, became possessed of the notes. Whatever may be the truth as to this matter, it is certain that the legal title to the notes was not in the plaintiff when he brought his action. Manifestly it was in Pope, as the notes had never been endorsed by him to any one. The unauthorized change in the phraseology of the notes, whether innocently or fraudulently made, did not render them negotiable by mere delivery. If Daniel was in fact the equitable owner of the notes, he might have instituted an action thereon, for his use, in the name of the person holding the legal title; but, under the facts as they appear in the record before us, his case falls squarely within the rule announced at the beginning of this opinion. In this connection, see Dalton City Co. v. Johnson, 57 Ga. 398; Benson v. Abbott, Parker & Co., 95 Ga. 69. Judgment reversed. All the Justices concurring.