Nelson v. Piper

De Courcy, J. The plaintiff, as holder of a promissory note made by one Barton, brought this action against the defendant Piper, who is trustee under a common law assignment made by Barton for the benefit of creditors, to recover the sum payable as a dividend on the note. It is to be noted that the action is not over the note itself. The trustee admitted his liability for the dividend, which he paid into court, but interpleaded the administrator of the payee named in the note, who had made claim for the money. Thereupon the administrator was admitted as a party, and the controversy proceeded between the plaintiff and the claimant. At the trial in the Superior Court the judge ruled that the plaintiff could not recover, and the correctness of that ruling is now before us. It appeared in evidence that the payee, H. N. Stone, had deliv [533] ered the note to the plaintiff, but by agreement between them he had indorsed it to his wife, Ella F. S. Stone. Clearly this indorsement did not transfer the legal title to her, but it remained in the husband, and after his death passed to the administrator of his estate, the present claimant. National Bank of the Republic v. Delano, 185 Mass. 424. National Granite Bank v. Whicher, 173 Mass. 517. There was evidence, however, which would warrant a finding that the equitable title to the note is in the plaintiff, and that he is entitled to the dividend thereon. It appeared that the payee, H. N. Stone, gave the note to the plaintiff in payment for legal services, that the latter received and has retained the instrument in good faith, and that the indorsement was made to Mrs. Stone in order that the plaintiff should not appear as a creditor in the bankruptcy proceedings that he was about to institute against the maker Barton. Apparently at no time thereafter did Stone have any interest in the note or right to its possession as against the plaintiff. Jones v. Witter, 13 Mass. 304. Crain v. Paine, 4 Cush. 483. Norton v. Piscataqua Fire & Marine Ins. Co. 111 Mass. 532. On these facts the rights of the parties were the same as they would be if Stone had not written any indorsement upon the note; and the plaintiff might have sued thereon in the name of the administrator, with or without the latter’s consent. Boutelle v. Carpenter, 182 Mass. 417. Troeder v. Hyams, 153 Mass. 536, 540. The plaintiff’s equitable title can be fully enforced under the pleadings in the case. If he was entitled in equity and good conscience to the dividend, he may recover the same under the count for money had and received. Wiseman v. Lyman, 7 Mass. 286. Bouve v. Cottle, 143 Mass. 310, 314. And now that the money is in the custody of the court under the statute, the rights of the plaintiff and the claimant are to be determined as in a suit of inter-pleader, and the one who has the equitable interest in the fund is entitled to prevail. R. L. c. 173, § 37. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305. Dixon v. National Life Ins. Co. 168 Mass. 48. Brierly v. Equitable Aid Union, 170 Mass. 218. The fact that neither of these parties assented in writing to the Barton assignment becomes immaterial in consequence of the [534] trustee’s position of stakeholder and his admission that he is liable for the dividend to either the plaintiff or the claimant. As the court erred in directing a verdict for the claimant, the entry must be Exceptions sustained.