Elliott v. Deason

1. If a promissory note, when made and delivered, is payable to a certain person or . • . (a blank being left suitable to the insertion of bearer or order) and afterwards the maker, for the purpose of securing the pajment of the note to the payee or his assigns, executes and delivers a mortgage in which the note is described as payable to the payee or bearer, the mortgage, on a rule to foreclose the same at the instance of an assignee, will be treated as explaining the intention of the parties in respect to the blank in the note, and the note being indorsed to the assignee of the mortgage or to her trustee, . will be held negotiable. 2. negotiable paper transferred bona fide, whether before or after maturity, and whether for a valuable consideration or for a good consideration only, is not subject in tbe bands of tbe bolder to a set-off between tbe maker and tbe payee, arising subsequently to tbe transfer and out of transactions wholly disconnected with tbe paper or tbe contract on wbicb it is founded. 3. When negotiable paper is assigned to a married woman, or to a naked trustee for ber use, both being absent, delivery may be made to a friend acting on her behalf, and the same will be as effective as if made directly to ber or to the trustee. 4. When a mortgage is assigned to a married woman, and the negotiable note wbicb it was given to secure is also assigned, but to a naked trustee for ber use, the title to both is in ber, and she may foreclose tbe mortgage in ber own name 5. A mortgage to tbe mortgagee and bis assigns, having upon it a written assignment purporting to be made for value received, and for love and affection, tbe assignment bearing date before tbe maturity of tbe debt, there is some evidence, in view of tbe general presumptions of law. of an assignmest for value — enough to warrant the court in touching upon that subject in charging tbe jury. 6. Advances by a partner to carry on the partnership business are general]}'on the credit of tbe firm, and not on tbe separate credit of tbe copartner. Reimbursement involves, therefore, a settlement of tbe partnership accounts ; and to settle them so as ascertain tbe balance,'if any, due for advances, there should be an accounting between tbe partners, either out of court or in court. For an accounting to be had in court, both partners should be present as parties before tbe tribunal. 7. Parol evidence is not admissible to show that a transcript of a record from another court is incompleto. A certificate to a transcript which states that “tbe following and annexed writing is a true, correct and complete copy of tbe original on file and remaining of record in my office” is not sufficient. It should show with due certainty that the transcript embraces all that is of record or on file in tbe given case. Where tbe verdict undoubtedly should have been tbe same without tbe illegal evidence as with it, the admission of tbe evidence is not cause for a now trial.

Negotiable instruments. Mortgage. Trusts. Parties. Husband and wife. Partnership. Evidence. New trial. Before Judge Underwood. Floyd Superior Court. March Adjourned Term, 1879. Mrs. Reason commenced proceedings against Elliott to foreclose a mortgage on certain real estate in Rome, executed to secure the payment of the following note : “On or by the 9 tli day of January, 1812, I promise to p<Ty W. L. Prentice, or-, five thousand and five hundred dollars for value received, 10 per cent, interest. This January 9, 1871. [Signed] J. M. Elliott.” On the back of the note were several credits, not material here. Also the foilwing transfer: “For love and affection I have for my daughter, Mattie P. Deason, I hereby transfer to J. T. Deason, her husband and trustee, this note and the mortgage taken to secure the same, also the steamboat stock I hold as collateral to secure the same. Witness my hand and seal, this January 9th, 1871. [Signed] W. L. Prentice.” ■“Attest: O. G-. Samuel. A mortgage was executed cotemporaneously with this note on certain property, which was subsequently taken up and canceled and a new mortgage made covering other property, dated June 8th, 1871. On this was the following transfer: “G-eorcua — Floyd county. For value received, and for love and affection, I hereby transfer this mortgage to my daughter, Mattie Deason, wife of J. T. Deason, now-residing in Jefferson county, Alabama, and I authorize said J. T. Dea son as her trustee to collect the note. This is intended to secure and-control the same for my said daughter and such children as he may have by her. Witness my-hand and seal, this June 8th, 1871. “Test: O. G. Samuel. • W. L. Prentice.” The note to secure which this instrument -was given was described therein as payable to “W. L. Prentice or bearer.” The defendant showed for cause against the foreclosure: 1. The general issue. 2. That the transfer was made after the maturity of the note, and was without consideration. That it was voluntary, and made when Prentice was insolvent. 3. That Prentice was, at and before the transfer, indebted to defendant $2,957.60, besides interest, for money advanced to him for his use in the partnership of Elliott & Prentice, which began on December 10th, 1871. Also various items of indebtedness arising from expenses incurred and losses in the business of said firm. The evidence showed that the note and mortgage, at the time of the transfer, were delivered by Prentice to one Samuel for the use of Mrs. Deason, he being her brother-in-law ; that the papers have been in his possession ever since. Much testimony was introduced on the subject of the partnership relations of Prentice & Elliott, advances by Elliott for the firm, losses in cotton transactions, and expenses of litigation, all of which is deemed immaterial here. The jury found for the plaintiff. The defendant moved for a new trial on the following grounds: 1. Because the defendant proposed to prove by Samuel, one of plaintiff’s witnesses, that the mortgage and note sued on had never been delivered to J. T. Deason, the trustee named in the assignment on the note and mortgage, and that he had never seen either of them, and the court refused to allow this proof to be made. Noth. — The court did not refuse to allow the defendant to prove any distinct fact connected with the delivery or possession of the note and mortgage. 2. Because the court refused to allow the defendant to show by D. S. Printup, that the record offered in evi- • deuce by the plaintiff of the suit of John Inman against Elliott, was but a part of the record of that suit, and because the court admitted that record in evidence against the objection of the defendant’s counsel that the certificate of the clerk did not show that it was a copy of the whole of said record. 3. Because the court charged the jury as follows: “The plaintiff alleges that the note and mortgage were assigned before the note was due — it is for the plaintiff to show this. If this is shown, or if the transfer was for value, and before the maturity of the note, and without notice of any existing equities between Elliott and Prentice, then the transfer would be good, and the plaintiff would be entitled to recover.” 4. Because the court charged the jury as follows : “If the transfer was made on the papers and they were not delivered, then the defense set up would be good up to the time the papers were delivered and as to such transactions as occurred before delivery, but if the note and mortgage were delivered to Mr. Samuel for Mrs. Deason, and she knew it, and he held them for her, then she would be liable only to such equity as existed at the time of such delivery.” 5. Because the court charged the jury as follows : “You will go further and inquire whether Elliott is a creditor of Prentice, and if the indebtedness arises out of the partnership. Has that partnership been settled by a judgment of a court? Unless the partnership has been settled by a judgment of a court, how is it to be ascertained that Elliott is a creditor? If there has been no judgment of a court, then the defendant would have to show that Prentice made the transfer to shuck himself, to strip himself of his property and put it where a creditor could not get it.” • The motion was overruled and defendant excepted.