
    LOVEL KNIGHTON vs. JOHN TUFLI.
    J. An instrument of writing for the payment of a specific sum in property, is assignable under the statute.
    
      S. The common law action of debt will not lie on an instrument of writing for the payment of a specific sum in property.
    
      APPEAL PROM WASHINGTON CIRCUIT COURT.
    Frissell for appellant.
    The appellant insists that the court erred in sustaining the demurrer, and that the judgment should be reversed.
    The instrument is inartificinlly drawn, but it is manifest that by it the defendant is indebted to theplaintiff, and as it may be considered a note within the meaning of the statute, and as such assignable. It appears to be an attempt to combine a note as a mortgage in the same instrument. Both, or either, are assignable by statute. It is not, therefore, seen why a suit might not be brought in the name of the assignee.
    This instrument contains the agreement of the parties, and is the only writing between them. Tufli isjiable to pay, and the money or plank is coming to the plaintiff.
    Neither the statute nor custom have established any particular form of a hondo? note. The substance and legal effect of the instrument, must determine whether it be assignable or not
    Cole for appellant.
    1. The plaintiff has misconceived hjs remedy.
    2. The instrument sued upon is an equitable mortgage. Davis vs. Clay, ex’r. 2, Mo. Sep. 161.
    3. This instrument is not assignable under our statute, so as to authorise an action by the assignee in his own name (6 M. R, 509, M. L. 190.)
    4. The declaration is all. The plaintiff should have averred that the debt has not been paid to the assignor. (_Keeton vs. Scantland, Hardins’ Reports, 149.)
    5. The instrument sued upon should be held a promissory note for property and assignable, then the common law action of debt is not the proper remedy, because the recovery in debt is in numero, and a judgment on a note for property could not be taken without a jury to find the damages.
   Judge Ryland

delivered the opinion of the court.

This is an action of debt brought by Lovel Knighton against John Tufli on the following instrument of writing:

“Know all men by these presents, that I, John Tufli, have this day given Ammon Knighton a mortgage on the undivided half of a saw mill on Fouch and Renault creek, and do by these presents, grant and transfer to said Knighton all my right, title, interest and claim in and to said Mill, and all the tract of land belonging to said mill place, formerly the property of Knighton and Lyon. This lien is given fpr the purpose of securing payment of the sum of three hundred and twenty-seven dollars and fifty cents, which payment is to be made in plank or lumber made at said mill, to be due one thousand feet each, wee^:, said mill can saw. Said debt tobe discharged by plank delivered at said mill, at the rate of twelve and a half cents for each quarter of an inch thick for .any kind of plank. Witness my hand, this 6th day of Sept. 1842.

JOHN TUFLI.”

“I do assign the within bond to Lovel Knighton for value received of him, as witness my hand, January 6th, 1843.

A. KNIGHTON.”

The defendant craved oyer and demurrer to the plaintiff’s declaration, setting out the instrument sued on as above.

The court sustained the defendant’s demurrer, and gave judgment thereon for him. The plaintiff thereupon fifed the affidavit, and prayed an appeal which was allowed him.

The only points calling for a decision of this court, are 1st. Is this instrument assignable under our statute ? 2d. Will the common law action of debt lie on this instrument ?

On the first point, I am of the opinion that the instrument is such a one as may be assigned under our statute.

On the second point, I am of the opinion that the common law action of debt cannot be maintained on this in this instrument. Sec. 1st, Bibb 356; Watson & McCall vs. McNainy, where the doctrine is fully examined. See also 3rd Missouri Reports, 16 Snell vs. Kerby.

Let the judgment be affirmed.  