Moses v. Thorne
California Supreme Court
Appeal from the District Court of the Twelfth Judicial District. The plaintiff brought his action in September, 1854, on an appeal bond filed in the case of M. T. O’Connor v. John Stack et al., by the defendants.
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Appeal from the District Court of the Twelfth Judicial District. The plaintiff brought his action in September, 1854, on an appeal bond filed in the case of M. T. O’Connor v. John Stack et al., by the defendants. The plaintiff alleged and proved final judgment in that case against the defendants, and assignment of the judgment to him by M. • T. O’Connor, the judgment creditor; no assignment of the bond to plaintiff was alleged or proved, but the assignment of the judgment uses these words : “ secured by appeal bond of Isaac N. Thorne and Robert T. Ridley as securities.” The Court below…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Justice Heydenfeldt.
Mr. Chief Justice Murray concurred.
There was no right of action in the plaintiff in his own name. To entitle him to bring this suit, he should have had an assignment of the bond. The assignment of the judgment, while it may give him equitable rights to avail himself of the security afforded by the bond, cannot confer the right of bringing a common law action upon it.
The reason why a mortgage follows the transfer of a note which it secures, is because a foreclosure is only sought in equity.
The judgment is reversed.
2Cited by4 opinions
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