McGee v. Riddlesbarger

Wagner, Judge,

delivered the opinion of the court.

Plaintiff in error obtained judgment in the Kansas City Court of Common Pleas against Thompson McDaniel, and had execution issued, under which Harrison H. Ratcliffe was summoned as garnishee. Ratcliffe in his answer stated that in the year 1858 he executed to said McDaniel his negotiable promissory note, due April 1st, 1861, on which there was a balance still due ; that he did not know whether at the time of the service of the garnishment, or of his answering, McDaniel still owned the note or not, but that he had been informed and believed that the defendants in error, Riddlesbarger and others, claimed to be the owners of the note by virtue of a mortgage made to them by McDaniel about May 25, 1860, and not knowing who was the legal owner of the note, asked to be protected, &c.

After the answer of the garnishee was filed, the defendants in error came into court and filed their interplea, setting up their right to the' note under the mortgage to them by McDaniel before the date of said garnishment, and asking the amount due on the note be adjudged them.

The issue upon the interplea was tried, and the court held that the note due from the garnishee was transferred by the mortgage to Riddlesbarger and others, and gave judgment in their behalf.

The mortgage after conveying certain real estate and personal property, also “ assigns all the notes, bonds, accounts and evidences of debt” of the mortgagor to the mortgagees, and a provision is inserted in the mortgage that if default is made in the payment of the debt for which it was given, the mortgagees should sell the mortgaged property, after giving *368 a specified notice. The mortgage remained unsatisfied at the time of the trial of this cause.

The material question in the case is, whether the deed of mortgage transferred the title in the note, executed by the garnishee to the defendant in the execution, to the inter-pleaders, so as to enable them to make a successful defence against the execution creditor. It is admitted that the note was retained by the mortgagor, but he had never attempted to collect the money upon it, nor use it as his own.

We do not think that the recording of the mortgage imparted any notice to creditors of the assignment of the note, according to the eighth section of the act of 1855 concerning fraudulent conveyances, for that section simply refers to personal property, or to goods and chattels, and not to mere choses in action. Rut a note or bond may be assigned and transferred by a separate and distinct paper.

The conveyance assigning to the interpleaders all the notes, bonds, accounts and evidences of debt of the mortgagor, had the effect of passing all the property and effects embraced in it to- them. It is of no consequence that the instrument which is the subject of this controversy is a negotiable promissory note, for it was long past due when the garnishment was served, and the execution creditor could not divest it of any equity that attached to it. The garnishee stated in his answer that he was informed and believed that the note was transferred and belonged to the interpleaders, and they immediately appeared in court and claimed the same. On the issue made up, they showed title by the assignment contained in the mortgage. There was no rebutting testimony offered. We cannot decide the assignment fraudulent ,per se, and as there was no evidence introduced attacking it for actual fraud, we must affirm the judgment.

Judgment affirmed.

The other judges concur.