Haescig v. Brown

Marston, J:

Complainant filed his bill to enjoin defendant from foreclosing a certain mortgage executed by complainant to secure the payment of a promissory note dated December 13, 1865, payable to James Tripp or bearer, and which he alleged had been paid by him to Eose Ann Tripp, the owner and assignee of the note and mortgage.

There are no questions of any importance whatever, except to the parties interested, raised in this case, and no lengthy discussion can therefore be indulged in. .

It appears that James Tripp conveyed to, Iiaqscig the *505 mortgaged lands, and that the noto and mortgage in question were given for a part of the purchase money.

It is claimed on the part of complainant that Eose A. Tripp, who was the wife of James Tripp, had some equitable interest beyond her homestead and dower rights in a part of the property conveyed to Haescig, and that she refused to sign the conveyance until after her husband had agreed that she should have this note and mortgage as her share; that James Tripp upon receiving the note delivered it to her, and that she retained possession thereof in accordance with such understanding. Also that in the fall of 1866 Tripp and wife separated, and that it was then agreed that Mrs. Tripp should have half the property, and that as a portion of her half she should retain this note; that she then had the note and mortgage in her possession, and handed them, in the presence of her husband, to her brother to collect and retain the money for her.

Defendant claimed that in July, 1866, ho agreed to purchase this note and mortgage from James Tripp; that he then paid fifty dollars, and afterwards in September paid four hundred and fifty dollars more and gave his notes for the balance; that a written assignment of the note and mortgage was then made by James Tripp to him, and that in December following he notified Haescig of such assignment.

IVe are satisfied that complainant’s claim is correct. Mrs. Tripp and her brother are both quite clear and positive that Mrs. Tripp should have this note. In this respect their testimony was uncontradicted. James Tripp was not sworn as a witness in the case. Defendant’s evidence touching his purchase is far from being satisfactory. He made his bargain with Mr. Tripp in July, and then paid fifty dollars. He claims to have had no knowledge at this time that Mrs. Tripp made any claim to the note or mortgage, and he says that some time afterwards he learned that another person claimed an interest in them. Although the evidence is not clear, the fair inference is, that .he ob *506 tained this information prior to making his payment of four hundred and fifty dollars and giving his note' in September following, when the assignment was made. If the fact was that he did not have such notice until after the payment of September, he should have made this clear and apparent in his testimony. The’fact that Tripp did not have the note in his possession in July, nor in Septembér, that he did not deliver it to defendant at any time or account for its absence, should have led defendant to be more careful. No reason is given by defendant for his not insisting upon the production and delivery of the note to him.

" The fact that complainant at the time he paid this note to Mrs. Tripp insisted upon being indemnified against loss thereby, is not, under the circumstances, suspicious as claimed. He had been notified that defendant claimed to have obtained an assignment of the note and mortgage from James Tripp. Now, although he may have had no doubt whatever but that the person holding possession of the note was the true owner and entitled to receive payment thereof, .it was prudence upon his part to obtain, if he could, indemnity against any claim which defendant might set up. The giving of such indemnity by Mrs. Tripp might be considered as showing that in1 her opinion defendant’s claim was worthless, rather than that it was of any value or validity.

The decree must be affirmed, with costs.

The other Justices concurred.