20 S.D. 459 | S.D. | 1906
The plaintiff’s cause of action is thus stated in the complaint: “(i) That on the 1st day of November, 1886, the defendants Ezra E. Stover and Eliza I. Stover executed and delivered to one P. M. Dunn their promissory note conditioned to pay to the order of said Dunn, $700, on the 1st day of November, 1891, with interest thereon at 7 per cent. per. annum payable semiannually until due, and 10 per cent, per annum on the principal and interest after maturity. (2) That for securing the payment of said note the said Ezra E. and Eliza I. Stover executed and delivered to the said P. M. Dunn a mortgage or trust deed of the same date upon certain real property in the county of Aurora, described -as. follows, to-wit: The S. E. Yi of section 35 in township 105 N. of range 64 W. (3) That on the 12th day of November, 1886, the said mortgage or trust deed was recorded in the office of the register of deeds of Aurora county, in Book 16 of Mortgages, on page 479. (4) That on the 21st day of March, 1888, the said Ezra E. and Eliza I. Stover conveyed the said real estate, subject to said mortgage, to the defendant, Peter McGovern, who thereupon agreed that the said note and mortgage should be paid at maturity, (5) That no part of the principal or interest of the said note and mortgage or trust deed has been paid except interest for the first year. (6) That the said Peter McGovern has, or claims to have, some interest or lien upon said real property, but that the same is subject to the lien of the said mortgage. (7) That on the 6th day of November, 1886, for a valuable consideration, the said P. M. Dunn indorsed, assigned, and set over the said note and mortgage or trust deed to John Jef-fries and sons, who immediately thereupon indorsed, assigned and set over the same to this plaintiff. (8) That no proceedings have been had at law or otherwise for the recovery of the debt secured by said mortgage or any part thereof.” Peter McGovern, the only defendant who answered, denies that the note was indorsed or transferred to Jeffries & Sons by or with authority from P. M- Dunn,
The learned circuit court found: That the note and mortgage were delivered to J. M. Dunn at Re Mars, Iow<a. That they were transferred to Jeffries & Sons for a valuable consideration, in November, 1886, after this indorsement was placed on the back of the note by P. M. Dunn: “Pay to1 the order of-without recourse.” That at the time the papers were transmitted to Jeffries & Sons, J. M. and P. M. Dunn were husband and wife, living together as such at Re Mars, Iowa, where the former was engaged in the business of a loan broker, at which time the latter knew her husband was taking such loans and papers in her name and transferring them as these were transferred. That the note was negotiable under the ’ laws of Iowa. That it was not negotiable under the laws of Massachusetts, and “that under the laws of the state of Massachusetts, there was no obligation on the part of the said P. M. Dunn, Jeffries & Sons or this plaintiff to notify the defendants Stover or McGovern of the transfer of said papers to protect themselves or any of them as against any payment of this note, coupons or trust deed to said J. M. Dunn.” The evidence conclusively proves that the note and mortgage were delivered at Plankinton, Dakota, (now South Dakota) but that fact is not material, because the note, by its terms, was payable at Boston, and the question of its negotiability is to1 be determined according to the law of the place where it was payable. Rev. Civ. Code, § 1255; 22 Am. & Eng. Ency. Raw, p. 1345.
It is undisputed that the note and mortgage were delivered by J. M. Dunn to Jeffries & Sons, for a valuable consideration, November 6, 1886, and it is immaterial whether the note was indorsed by the payee or her husband, as the trial court found and the evidence
The trial court found that the note has never been paid to P. M. Dunn, Jeffries & Sons, or the plaintiff, but the finding is not sustained by the evidence. There is a clear preponderance against it. It is undisputed that McGovern paid J. M. Dunn the full amount due and one year’s advance interest April 16, 1888, whereupon the latter executed and acknowledged a discharge of the mortgage, which was recorded April 21, 1888. Payment to J. M. Dunn was payment to his wife. If, as found by the court and clearly shown by the evidence, Mrs. Dunn was bound by the act of her husband -vyhen he transferred the note she was bound by his act when he received payment from McGovern. It clearly appears that she had no interest in the note; that her connection with the transaction was merely nominal — the same as though the name of a fictitious person had been employed. _ As was said by this court in Pickford v. Peebles, 7 S. D. 166, 63 N. W. 779, “had the note not
So for the purpose of this appeal, there was payment to the payee of a nonnegotiable note after its assignment, and the vital question is whether such payment was made before notice of the ■■assignment. No assignment of the mortgage was recorded until long after the payment was made, and the only finding as to notice is as follows: 'That at and prior to the execution of the said release deed the said defendant Stover had notice of facts sufficient to put him upon inquiry with reference to the transfer of the papers herein involved to this plaintiff.” This is a conclusion of law rather than a finding of fact, but assuming that it is sustained by the •evidence and that constructive notice of the assignment to the maker •of the note was sufficient to protect the assignee against payment by the maker to the payee, the finding is not relevant to any issue in this action. There is no presmption of law that'Stover imparted his information to McGovern. The latter cannot be charged with notice merely because it was possessed by the former. McGovern purchased the mortgaged premises relying upon the records, which disclosed that the indebtedness was payable to P. M. Dunn and .that the mortgage was to be satisfied by the trustee named therein. ■By reason of such purchase he was entitled to pay the debt to pro-fleet his property. This court has held: “Where a real estate mortgage, given to secure a nonnegotiable note, is assigned to a purchaser of the same, who fails to put such assignment on record, and
As to what constitutes notice of an assignment no opinion is expressed. It will be found that the authorities are conflicting. Nor do we at this time determine ■ whether the provisions of the mortgage respecting the trustee’s powers do not preclude the plaintiff from questioning the validity of the trustee’s release, notwithstanding McGovern may have had actual notice of the assignment.
The judgment is reversed, and a new trial ordered.