White v. Winslow

Connor, J. On their appeal to this Court the defendants contend that there is error in the judgment in this action for that it appears from the [209] agreed statement of facts on which the judgment was rendered that at the commencement of the action the plaintiff was not the owner of the note sued on, and was therefore not the real party in interest with respect' to the subject matter of the action. This contention cannot be sustained. The judgment is fully supported by the decision of this Court in Ball-Thrash v. McCormick, 162 N. C., 471, 78 S. E., 303. In the opinion in that case it is said: “The bald question, therefore, is, Can a pledgor who has deposited notes with a bank as collateral sue and recover upon the same if he pays his debt, takes up the collateral notes, and produces them at the trial, so that they can be canceled for the protection of the debtor? We will answer this question in the affirmative, as we think it is in accordance with principle and authority.” See Simansky v. Clark (Me.), 147 Atl., 205, 65 L. R., 1316, and notes. In the instant case the plaintiff did not part with her legal title to the note sued on, as payee, when she pledged her note with a creditor as collateral security. At the date of the commencement of the action she had a substantial interest in the note, which was sufficient to constitute her the real party in interest with respect to the subject matter of the action. At the trial, and before judgment, she had the note in her possession for cancellation by the court, when the judgment was rendered. The defendants who offer no defense to a recovery on the note, are fully protected by the cancellation of the note. The judgment is Affirmed. Devin, J., took no part in the consideration or decision of this case.