Van Doren v. Relfe

Scott, Judge, delivered the opinion of the court. The point relied upon by the defendant is, that this suit cannot be maintained in the name of Vandoren. There being no seizin in James H. Eelfe, of the land conveyed by him to Van-doren, the covenant of seizin contained in Relfe’s deed was broken immediately, and a right of action accrued thereon to Vandoren so soon as it was executed. So there was in Van-doren a right of action for unliquidated damages arising from a breach of contract. Vandoren afterwards assigned this right of action to trustees for the benefit of his creditors. The requirement• of the present practice act is, that every civil action must be prosecuted in the name of the real party in interest, with some exceptions. Among these is that of a suit by the trustees of an express trust. Now hut for this exception, this suit must have been brought in the name of the creditors. There was no interest in Vandoren which would have warranted a suit in his name. This is not like those cases in which a note is expressly made payable to a person who holds that note for the benefit of others, as in the case of Harney v. Dulcher, in which it was held, that the payee of the note was the trustee of an express trust. (15 Mo. Rep. 89.) Here Vandoren is the mere owner of unliquidated damages which he has assigned away. He then is in the situation of the holder of an open account, who, after he assigns it away, cannot maintain an action upon it in his own name. (Mauro v. Walker, 18 Mo. Rep. 564.) [457] IE the right of action was not transferred to Vandoren’s trustees, then it continued in him until his bankruptcy, when it passed to his assignee. So, in whatever light the matter may be viewed, Vandoren has no right to institute suit in his own name. With the concurrence of the other judges, the judgment will be reversed.