Page:Federal Reporter, 1st Series, Volume 1.djvu/298

 290 ÏEDEBAIi BEFOBTEB. �to convey to plaintiff several designated tracts of real estate, including one which is averred to be with no other descrip- tion — "160 acres of Missouri land, with perfect title." �It is averred in the bill that defendant Brewster was a party to the transaction, although not signing the contract, and that the farm in CarroU coanty, Missouri, above named, was, by consent, conveyed to him instead of Betts, and that he had notice of plaintiflf's claim. It is conceded that the contract has been eomplied with in ail respects, except as to the conveyance of the 160 acres of Missouri land. Concern- ing this latter, which is the subject of this controversy, the facts, so far as they need now to be determined, are as fol- lows: The plaintiff, by an instrument in writing which is not dated, but which was executed prior to January 7, 1874, assigned his claim for the said 160 acres of Missouri land to one J. S. Winfrey. This assignment was in the form of an order, addressed to defendant Betts, directing him to make the deed for said land to Winfrey, and signed by the plain- tiff. On the seventh of January, 1874, it was assigned by Winfrey to John Dickinson, and on the fourteeth of March, 1874, it was presented to and duly accepted by defendant Betts. Thus the matter stood when, on the thirty-iirst of December, 1878, this suit was brought. On the first of Au- gustj 1879, seven months after the filing of the bill in this case, the order was assigned by Dickinson to the plaintiff. �It is insisted for the defence that these facts show that plaintiff did not own the cause of action at the time he brought the suit, and that therefore he cannot recover, in view of the well settled rule that the plaintiff in a suit must recover, if at ail, upon the facts as they existed when he com- mencedproceedings. Reppy v. Reppy, 46 Mo. 571 ; McDowell V. Morgan, 33 Mo. 555 ; Waterman ou Set-Off, 414. But it is insisted by the counsel for plaintiff that the case does not fall within this rule, because the assignment from Green to Winfrey was fraudulent and void. The proof upon this sub- ject is that the consignment was executed in assideration of the purchase by plaintiff from Winfrey of the right to use and sell a certain patented article within a specifîed territory. ��� �