Harris v. Mount Washington Co.

JAMES J.

Appeal by defendant executrix from a judgment entered in favor of the plaintiff.

J. E. Marsh was a guarantor on a promissory note executed by the Mount Washington Company in favor of the Title Insurance and Trust Company. The note was payable one day after date and was executed on April 15, 1916. On the first day of April, 1917, Marsh died and on the thirtieth day of July of the same year Florence A. Andrews was appointed executrix under the will. She qualified on August 2, 1917, and caused notice to creditors to be pub

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lished. The date of the first publication, of said notice was June 19, 1919. There being owing on account of the promissory note mentioned the sum of $7,727.98, the Title Insurance and Trust Company on the fifteenth day of January, 1920, assigned to D. A. Anderson, one of its employees, its claim against Marsh’s estate, and on the twentieth day of January, 1920, Anderson presented to the executrix a claim in due form showing all of the facts required to be set forth under the provisions of sections 1494 and 1497 of the Code of Civil Procedure. The claim was rejected by the executrix on the day of its presentation, whereupon Anderson reassigned the claim to the Title Insurance and Trust Company, which in turn, and on the first day of February, 1920, assigned and transferred the same to the plaintiff. At the trial proof was made of the amount of the claim and the fact that there were no offsets existing either as against the nominal plaintiff or the original payee of the note, and that no security had been given. It is the contention of appellant that the Title Insurance and Trust Company should have made proof of the claim, and that the assignment to Anderson and his verification of the demand did not entitle suit to be brought after rejection of the claim. The second point made is that the subsequent assignment to plaintiff did not carry with it the right to prosecute this action. The point of the- latter contention is that this plaintiff, in order to maintain suit, must have made a claim against the estate in the manner provided by the code. The third contention relates to the statute of limitation, it being insisted that the action was barred by reason of provisions of section 353 of the Code of Civil Procedure. We think that the Title Insurance and Trust Company had a plain right to assign its contract demand against the estate of Marsh, and that the assignee was entitled to make proof of the claim as he did. In the claim as filed the executrix was given full information as to the nature of the demand and the conditions of the obligation. The assignment to Anderson was made for the purposes of collection merely. Such assignment, nevertheless, v was effective to transfer the legal title to the demand