Bartlett v. Varner's

56 Ala. 580 | Ala. | 1876

STONE, J.

The mortgage made by Bartlett to Paine and Ligón was transferred by the mortgagees to Yarner, as securi ty or collateral to a debt, then held by him, on which they, Paine and Ligón, were bound as co-makers. This was a sufficient consideration to uphold the transfer; but, as no present consideration moved from Yarner to Paine and Ligón for this transfer, it did not constitute him a purchaser for value, so as to cut off defenses that may have existed against Paine and Ligón.' — Boyd v. Beck, 29 Ala. 703.

That Bartlett, at one and the same time, procured Paine and Ligón to become his sureties, and executed the mortgage to them to indemnify them against such suretyship, is among the undisputed facts in this case. This, under all the authorities, constituted them purchasers; and unless it be shown that, at the time they so executed the note, and took the mortgage, they had notice of Mrs. Bartlett’s claim, they were innocent purchasers without notice. — Fenno v. Sayre, 3 Ala. 470; Andrews v. McCoy, 8 Ala. 920; Wells v. Morrow, 38 Ala. 125. The omis of proving such notice rested on Mrs. Bartlett — Carpenter v. Devon, 6 Ala. 718; Walker v. Palmer, 24 Ala. 358; Carroll v. Malone, 28 Ala. 521.

Under these principles, the controversy is narrowed to the single inquiry, whether it is shown by the testimony that Paine and Ligón had such notice. The chancellor found it had not been so shown, and we are not convinced he erred therein. — -Nee Bryan v. Hendrix, at present term. It is immaterial what notice they may have had afterwards, or whether Yarner, when he acquired the mortgage, had or had not notice. He had become the holder of the claim, with the right to maintain whatever suit Paine and Ligón could have maintained; and this armed him effectually against all equities which Bartlett and wife were precluded from asserting against Paine and Ligón. — Horton v. Smith, 8 Ala. 73; Daniel v. Sorrells, 9 Ala. 436.

The note of Bartlett, Paine and Ligón was transferred to Yarner, strictly according to the requirements of the law, before the present suit was brought. It is immaterial whether the agreement to sell, and the actual transfer of the note, were consummated at one and the same time, or not. The inquiry, at most, was only material in this case, as showing a right in Yarner, and a consideration to uphold the transfer of Bartlett’s mortgage by Paine and Ligón. It is fully shown that Yarner had become the owner of the note; neither Mr. nor Mrs. Torrance set up any claim to it, and there is nothing in this record which, in the least, impairs that right.

The decree of the chancellor is affirmed.