(dissenting).
I dissent. The statute makes all choses in action which were not negotiable by the law merchant so iar negotiable that the legal title thereto may be transferred by an assignment thereof, subject to any defense thereto, legal or equitable, that the maker may have. Therefore there is, in legal effect, written upon all nonnegotiable paper, these words: “This instrument is assignable, subject to any defense which the maker may have to it.” Now, to conclude, from the fact that the maker of such an instrument is not estopped, because he has issued an undertaking creating an apparent liability against himself, that the payee, who has clothed his assignee with the apparent absolute title thereto, is not equitably estopped from asserting any latent equities as to such title against a bona fide purchaser, is to reason from false premises, because in the former case the proposed purchaser is admonished by the law that, if he buys, he does so subject to any equities the maker may have, but in the latter he is advised that the payee may transfer the absolute legal title by an assignment.
Equally unsound, it seems to me, is the claim that to apply the doctrine of equitable estoppel, as between the payee of a nonnegotiable instrument and a bona fide purchaser who parted with his money in reliance upon an absolute assignment of the paper, makes the paper, in effect, negotiable. The application of the doctrine in such a case does not affect the negotiability of the instrument, or give to it any rights other than such as the statute gives, for it is still subject to all defenses valid as to the original parties. In this case the plaintiff conferred upon his assignee the apparent absolute legal title to, and ownership of, the insurance policy, and permitted him to retain it and pay the premiums for 10 years, and then, after the bank had honestly parted with its money in reliance upon such apparent ownership, he seeks to assert a latent equity existing between him and his assignee as to the title. Upon the plainest principles of justice he ought to be estopped from asserting his equities to the prejudice of the purchaser, and such seems to be the law. Moore v. Metropolitan, 55 N. Y. 41; Bigelow, Estop. 562; Colebrooke, Coll. Sec. §§ 486, 439; Jones, Pledges, § 466.