Herring v. Woodhull

APPEAL FROM WINNEBAGO. An indorsement may be on the face of a bill or note; and any form is sufficient which manifests an intention to make a transfer. The assignment of a note, the payment of which is secured by mortgage, carries the mortgage with it. A note secured by mortgage indorsed to A and B, entitles each to one-half the note and its proceeds, as well as the security, and neither can transfer any other or greater interest. Upon a bill filed by C, which avers that A was authorized to assign the interest of B and the mortgage security to the complainant, and A and B are summoned by publication, and make default, this allegation will sustain a decree, taken pro confesso, declaring that the whole interest in the note was assigned by A to B. Where a note was given in 1854, for the purchase of land, bearing ten per cent, interest, a decree of foreclosure of such a note and the mortgage security, should only be rendered for six per cent., and interest over six per cent, which may have been paid, should be credited.

This bill of complaint, filed by Woodhull, states that on the 18th of January, 1851, Granville Herring, of Winnebago county, Illinois, was indebted to Benjamin Moffatt, then of the same county, but now deceased, in $1,200, and made his promissory note for that sum, payable with interest annually-at ten per cent., to said Benjamin Moffatt or bearer, five years from date. To secure the payment of the note, Granville Herring, on the same day, made to Benjamin Moffatt a mortgage in fee of eighty acres of land described therein, lying in the county of Winnebago. Subsequently, on April 15, 1856, Herring mortgaged the east half of the land to the Racine and Mississippi Railroad Company, the east half of the premises mortgaged to Benjamin Moffatt, to secure payment of $1,000, and that company has assigned the mortgage to some person or persons unknown. There is due on the mortgage to Benjamin Moffatt, $1,200, with interest from 18th January, 1858. In May of the year aforesaid, Benjamin Moffatt, for a valuable consideration, assigned the note and mortgage to Daniel C. Moffatt and Hezekiah H. Moffatt, by a written guarantee on the note, and by an instrument in writing under seal, and the instrument, note and mortgage were delivered to them. On the 25th of April, 1857, Daniel C. Moffatt, then having the note and mortgage in his possession, and being by Hezekiah H. Moffatt authorized to do so, for and in behalf of himself and the said Hezekiah H. Moffatt, assigned the note and mortgage to complainant Woodhull in writing, and delivered the same to Woodhull; and he avers that Hezekiah H. Moffatt authorized the delivery of the note and mortgage by the said Daniel C. to him, Woodhull, for the purpose of assigning the same, and thereby assigned his interest therein to the complainant, Woodhull. That defendant Thorne, the railroad company and persons unknown, claim some interest in the premises. Defendants to answer without oath. Prayer for the usual decree for sale of premises for the mortgage money, and for general relief. There is also appended to the bill as part thereof, an assignment of the note and mortgage, under the hand and seal of Benjamin Moffatt, dated May 6, 1854. It purports to be annexed to the mortgage, and in consideration of $1,200, sells, assigns, transfers and sets over to Hezekiah H. Moffatt and Daniel C. Moffatt, “ the annexed mortgage and the promissory note therein described,” and all moneys secured thereby, and all “ my right, title and interest in the real estate therein described.” “ And I do hereby authorize the said Hezekiah Moffatt and Daniel C. Moffatt, in my name or otherwise, to collect and obtain payment of the same, in the same manner as I could, had not these presents been executed.” Habendum of the note, mortgage deed and premises mentioned therein, to Hezekiah and Daniel Moffatt, their heirs, executors, administrators and assigns forever. Also a covenant that the money is unpaid, and of right to assign, and a guaranty that the money shall be paid according to the note and mortgage, and a covenant to pay the money himself in case it shall not be so paid. There is also annexed to the bill an assignment from Daniel 0. Moffatt- to the complainant. It purports that Daniel 0. Moffatt, in consideration of $1,352.50, grants, bargains, sells, assigns, transfers and sets over to Woodhull the mortgage, which was, by Benjamin Moffatt, duly assigned to Hezekiah H. Moffatt and Daniel 0. Moffatt, by'deed dated May 6,1854, together with the note accompanying the mortgage, and all the moneys and interest, with habendum to Woodhull, his executors, administrators and assigns. “ And I do hereby make ” Woodhull “ my attorney, in my name, or jointly with the name of the said Hezekiah H. Moffatt, or otherwise, to take all lawful means for the recovery of the money, and to discharge the same, as fully as I or the said Hezekiah H. Moffatt might do if these presents were not made.” Also a covenant that the sum above mentioned is due on the note and mortgage, and “ that I have the right to sell, transfer and assign the same as aforesaid.” Date, April 25, 1857. Writs of summons were issued and served upon Granville Herring, the Hacine and Mississippi Railroad Company, and Julius P. Thorne. The answer of Granville Herring sets up that at the time of the making of the note and mortgage, he purchased of Benjamin Moffatt the land described in the mortgage, and for part of the purchase price made the note and mortgage, and the note and mortgage were not made to secure the payment of money loaned; and the consideration was none other than the purchase money for the land. The purchase money was made at Howard, Winnebago county, Blinois, at the time when the note and mortgage were executed, and not elsewhere, or at any other time, and he insists that the note is usurious as to all the interest above six per cent. The complainant, Woodhull, when he purchased the note and mortgage, had notice of consideration ; and he insists that Woodhull is not entitled to recover the usurious interest, whether he had notice or not. He has no knowledge of the assignments, but presumes they are truly copied. He never executed any mortgage of the land mentioned in the bill, to the Racine and Mississippi Railroad Company, and that company do not, to his knowledge, claim any interest in the mortgaged premises, or any part thereof; and he insists he is not liable for the costs of that company or unknown persons parties. He paid upon the note and mortgage, four sums of $120 each, at the end of one, two, three and four years respectively from date, or thereabouts, and they were indorsed upon the note. And he insists that those payments shall be applied towards the discharge of the principal, and such interest, if any, as may be lawfully charged. A replication was filed. An affidavit of the non-residence of defendant, Hezekiah H. Moffatt, and the unknown persons defendants, was filed, and notice to them was published. The cause was heard at February term, 1862, and the decree was entered March 5, 1862. ' It states that the bill was taken for confessed against the defendants, other than Gran-ville Herring. It declares that Granville Herring made the promissory note described in the bill; that Woodhull is the bona fide holder and indorsee of that promissory note, and assignee of the mortgage; that the note and mortgage have been assigned to Woodhull in the manner in the bill described, and are now due and unpaid, and that the sum of $1,695.66 is due thereon. It decrees that, within thirty days, Granville Herring pay to Woodhull the money and interest, and costs, and that on default, the master sell the premises in the manner directed by the decree, subject to redemption. An appeal was taken and perfected. The errors assigned are, that the decree declares that the writing, called in the bill a promissory note, is a promissory note, when it is not, by custom of merchants or statute. It declares Woodhull to be the indorsee of the note, when it was not negotiable, and was not indorsed to him. The decree declares that the note and mortgage had been assigned to Woodhull; whereas, a valid assignment of the whole, or more than a moiety, is not shown. The decree finds $1,695.66 due on the note and mortgage, including ten per cent, interest after due, instead of six. It allows ten per cent, interest on the note and mortgage, when no interest was allowable at any time, or at most not more than six per cent. The decree ought to have been in favor of Granville Herring, and not for Woodhull.