Albright v. Russell

5 Neb. 207 | Neb. | 1876

Lake, Cm J.

There is but a single question presented in this record; and that is simply whether the petition states facts sufficient to constitute a cause of action against William A. Albright, by whom the case is brought into this court.

It appears that the defendants, Eobert and John Dundas, on the 16th day of May, 1873, gave to said Albright their promissory note for $500, payable two years from date. In July of the same year, Albright purchased from Araminta M. Tingle, another of the defendants, a house and lot, and as part payment thereof, assigned to her the note in controversy; and at the same time, to secure its payment at maturity, gave back a mortgage, in the usual form, on the same property. On the 17th of July, 1873, Mrs. Tingle duly assigned both the note and mortgage to the defendants in error, who, on the 4th of September, 1875, brought their action thereon, in due form, to obtain a foreclosure. The assignment, by which Russell and Holmes toolc this note and mortgage, was in these words, viz:

“ For value received I hereby assign, sell and set over the foregoing mortgage, and the note therein mentioned, to Russell & Holmes, bankers. Tecumseh, July 14th, A. H. 1873.

(Signed,) A. M. Tingle.”

It is very clear, that by this assignment, whatever rights were possessed by Mrs. Tingle, in respect to the note and mortgage, passed to Russell and Holmes. Whatever her equities would have been as against Albright, had she retained them and brought the foreclosure suit, belong now to the defendants in error.

It is important, therefore, to inquire as to the nature of the transaction between Albright and Tingle. What was the obligation assumed by the former, when he gave the mortgage in question? Was it simply that of an indorser of negotiable paper, by which, in order to fix his liability, a demand of payment, protest, and notice of dishonor were requisite? We think not. By the terms of this mortgage he pledged the property therein described, not merely to secure the payment of the note by him according to the liability of an indorser, but rather as an original promissor, and for a new and independent consideration. By reference to the mortgage, we find this provision: “ That, whereas, the said William A. Albright is indebted to the said Araminta M. Tingle in the sum of five hundred dollars as evidenced by a certain promissory note given by Robert Dundas and John H. Dundas to said Albright, dated Sheridan, Neb., May 16th, 1873, calling for five hundred dollars, two years after date, with ten per cent interest from date, and payable to said Albright or bearer; which said note the said Albright assigns to said Araminta M. Tingle, as a part of the purchase money of the above described premises. Now, therefore, if the said William A. Albright shall pay or cause to be paid the said sum of money with the interest thereon according to the tenor and effect of said promissory note, then these presents shall be void and of no effect, otherwise to be in full force and effect.” In this assignment there is: First, an acknowledgment by said Albright of a present indebtedness, in the full amount of said note to said Tingle. There is no allusion whatever to the conditional liability of an indorser; and, Second, there is an agreement that if Albright shall fail to pay the noté! or cause it to be paid, at maturity, the mortgage should be of full force and effect. There was, therefore, no necessity for any demand, notice of dishonor, and protest, in order to fix the liability of Albright to pay this note.

It is clear that the petition states a good cause of action; and the judgment of the district court must be affirmed.

Judgment affirmed.