I dissent. I think the case of State ex rel. Freebourn v.Merchants' Credit Service, Inc., 104 Mont. 76,66 P.2d 337, is not controlling here. That was a contempt proceeding to punish the defendants for practicing law without a license. In this proceeding the debtor is attempting to defend the action against him on the ground that plaintiff is not the real party in interest, within the meaning of section 9067, Revised Codes. The purpose of that statute, so far as the debtor is concerned, is to assure him that he will not later be subjected to a second suit for the same cause. (First State Bank v. Mussigbrod, 83 Mont. 68,271 P. 695.) *Page 116
In the light of the written declaration of trust made by the original owner of the claim, it is not possible that the original owner can again sue defendant Benson, and there is no possibility of him being subjected to a second suit for the same cause. Hence, so far as defendant Benson is concerned, I think the declaration of trust protects him against a second suit.
As to the question of public policy I have only this to say: Heretofore it has never been against public policy for a person to collect an obligation due him. If this be so, then it is not against public policy to create a trust for that purpose. Such a trust has been recognized as valid. (Toby v. Oregon P. R.R.Co., 98 Cal. 490, 33 P. 550, and cases therein cited; and see 20 Cal. Jur. 494.) Also, if such a trust be opposed to public policy, the original owner of the claim who made the declaration of trust could not assert its invalidity and thus take advantage of his own wrong in order to bring a second suit on the claim. I think the demurrer to the answer should have been sustained.
In considering this case I am accepting the Merchants' CreditService, Inc., Case as stare decisis, though as will appear from the opinion therein, I did not agree with it.