Cortelyou v. Jones

HARRISON,J.

—Action for the foreclosure of a mortgage. The appellants executed a mortgage upon certain real property, to secure the payment of certain promissory notes which were set forth therein, and thereafter the mortgagee executed to the plaintiffs herein an instrument by which he assigned to them

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those certain mortgages and credits more particularly described as follows, to wit, . . . ; also, a mortgage from O. H. Jones, dated October 24, 1892, there being now due thereunder about $630, and interest from that date till the present

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time at the rate of ten per cent per annum; also, all other moneys now due to me from any source whatever, said mortgages and debts or credits to be collected, and the proceeds to be held in trust” (naming the purposes of the trust and giving directions to the trustees). Judgment was rendered herein in favor of the plaintiffs for the amount due upon the promissory note, and a foreclosure and sale of the mortgaged lands. The defendants have appealed therefrom and from an order denying their motion for a new trial.

The appellants urge in support of their appeal, that, as under the assignment the plaintiffs are made the trustees of an express trust, they could bring the action only in their representative capacity, and should have set up in their complaint the facts creating the trust, and were not entitled to a judgment in favor of themselves individually. Their contention in this respect cannot, however, be sustained. By the terms of the assignment the mortgages and debts were transferred to the plaintiffs, “ to be collected, and the proceeds to be held in trust.” The legal title thereto was therefore vested in the plaintiffs, and the beneficiaries under the trust had no interest, except in the proceeds of the collection. A payment by the defendants to the plaintiffs without suit would have exonerated them from all liability to the beneficiaries, and they will be equally exonerated by a satisfaction of the judgment herein. “A trustee to whom a chose in action has been transferred for collection is, in contemplation of law, so far the owner that he may sue on it in his own name.”

(Toby

v.