Roane v. Lafferty

By the Court, Ringo, C. J. The assignment of errors questions the correctness of the judgment on the demurrer. From the view which we have taken of the subject, it is only necessary to notice the second ground specially assigned in the demurrer, which distinctly involves the legal right of the appellants, as shown by the pleading, to the debt demanded, and the legal liability of the appellees to pay it to them. We consider it well established, as a general rule in pleading, that the plaint must show in all of the plaintiffs a legal right to demand against all of the defendants, the right, or thing sued for, and sought to be recovered, by the action; otherwise it is fatally defective, and, on demurrer thereto, must be adjudged bad. In this case the appellants, claim to derive title to the note, which is the foundation of the action, from the bank, the payees therein named, by an assignment thereof, by her made to twelve of them, and to three other persons, as survivors and successors, of whom they sue. The note being assignable by the statute, Rev. St. Ark., chap. 11, sec. 12, the assignment thereof, according to the uniform course of the adjudication in this court, vested in the assignees the legal inter--eet in, and right of action on, the note.; which could not be divested, Otherwise than by a new assignment thereof by them, to some other persons, or party. . Gamblin et al. vs. Walker, 1 Ark. Rep. 220. Block vs. Walker, 2 Ark. Rep. 4. The legal interest therefore, in the note in question, becomes, by the assignment thereof by the bank, vested in the fifteen persons to whom it was assigned, and could only be divested, by their assignment to some other party or persons; and it makes no difference whether the assignment was made to them as trustees or otherwise, because the legal title is vested in them in either event, and must in either be divested in the same manner; and although the right so vested would, by operation of law, survive to the remaining assignees, «pon the death of one or more of them, yet we are not aware of the existence of any law, transferring it, or authorizing its transfer, to any successor of any assignee, who may have died, or have been removed, «ven though the right to control the note, and receive and dispose of ¡the money, should be vested jointly in the survivors and successors of ithe assignees, a question about which we express no opinion, as it is án no wise, as we conceive, involved in the decision of this ease. The legal right in the note, as shown by the pleadings, is, in our opinion, vested in.all.of the surviving assignees; who alone, for aught that appears in this case, are entitled to maintain an action at law upon its consequently no legal title in the note is, by the pleadings, shown to be in three of the appellants, to wit, the successors of the as-signee who is stated to be dead, and those said to be removed; and for this defect, the demurrer to the declaration was well taken, and judgment thereupon rightly pronounced against the appellants. The judgment of the circuit court must therefore be, and it is hereby, in all things affirmed with costs.