5 Blackf. 24 | Ind. | 1838
Trevor sued Bowers in an action of debt. The declaration sets out a sealed note executed by the latter to one O'Neal for 300 dollars, an assignment of the note by him to Trevor, Messick, fy Co., and by them to the plaintiff below. Oyer having been prayed and given of the note and the assignments, it appears that the- indorsement by Trevor, Messick, &$■ Co. to the plaintiff is in blank.
The defendant pleaded nil debet, and a special plea.
The latter alleges that O'Neal, the payee of the note, represented to Boioers that he (O'Neal) was the owner of two lots of ground in Centreville, and falsely stated that he had full right and power to sell the same, and that they were unincumbered; that in consequence of these statements, Bowers purchased the lots of O'Neal at the price of 1,500. dollars; that he paid a portion of the purchase-money in hand, and executed the note declared on for a part of the remainder and for no other consideration; that at the time of the contract, O'Neal executed his bond to Bowers conditioned for the conveyance of the lots to him, by a general warranty deed, when the purchase-money should be fully paid. The plea further alleges that O'Neal, at the time of the contract of sale, and at all times afterwards, had not any right to sell and convey one of the lots, but that he had previously mortgaged it to one Frybarger to secure the payment of 400 dollars which were still due; that O'Neal was insolvent and entirely unable to pay that or any other debt; and that, at the time of the contract of sale, and always
To this plea the plaintiff (craving oyer of the bond and condition mentioned in it, which was granted) replied, that the note was not given in consequence of the false representations in the plea alleged, but was executed for a good and valid consideration; that, at the time of the contract of sale mentioned in the plea, and in consideration of which the note declared on was given, besides the payment of 300 dollars in hand, and besides the amount of that note, Bowers executed to O'Neal three other notes for the balance of the consideration-money for said lots, for 300 dollars each, payable in 1839, 1840, and 1841; that the 900 dollars thus secured were still due, and that, therefore, O'Neal was not bound by the condition of the bond to convey the lots to Bowers.
The special pleading is spun out until it terminates in a rebutter, to which the plaintiff demurred; but as this learned process raises no question, which is not involved in the plea and replication, we deem it unnecessary to state its subsequent stages. The plaintiff also demurred to the plea of nil delet. The Court decided in his favour on both demurrers, and rendered final judgment for him.
The decision of the Circuit Court in sustaining the demurrer to the plea> of nil debet is not impugned by the appellant; but he contends that as the whole pleadings are brought in review by the demurrers, and that as it appears by the oyer of the note, which is the foundation of the action, and of the assignments of it, that the indorsement of Trevor, Messick, Co. to the plaintiff below is in blank, he cannot sustain this action.
This objection, whether it be considered as founded on the variance between the assignment of the note set out in the declaration, and the blank indorsement exhibited by the oyer, or upon the supposed inadequacy of the latter to enable the plaintiff to sustain his action, is not tenable. The variance is immaterial; and a blank indorsement is sufficient to entitle a bona.Jide holder of a note to sue and recover judgment in his own name. Chitt. on Bills, 174.—Rees v. Conococheague Bank, 5 Rand. 326.—Norris v. Badger et al., 6 Cowen, 449.
The next inquiry is as to the validity of the special plea. It might have been drawn with more care, but we consider it substantially a good defence to the action, alleging fraud in the consideration of the note. It avers that O’Neal affirmed himself to be the owner of two lots of land, and falsely represented that they were unincumbered,— thus inducing the defendant to purchase them, and give the note for a part of the consideration-money; whereas in fact one of the lots, worth 1,000 dollars, was incumbered by an unsatisfied mortgage executed by O’Neal to.insure the payment of 400 dollars, which sum he was wholly unable to pay. It is true, the plea does not, in terms, allege that O’Neal was aware of the existence of the mortgage, or that Bowers was ignorant of it; but as O’Neal executed the mortgage himself,'he must have known that fact: an averment of scienter would have been unmeaning. The ignorance of Bowers of the incumbrance is virtually alleged by the statement, that he was induced to purchase by the false affirmation that the lots were free from all incumbrance. We consider the silence of O’Neal on the subject of the mortgage to be a suppressio veri amounting to fraud, which is aggravated by his false declaration that the lots were not incumbered. That one of them was not embraced by the mortgage cannot change the result. The contract was entire, and fraud in any part of it is sufficient to vitiate the whole. 2 Hov. on Fr. 4..
The replication is clearly defective. It is no answer to the plea; it neither denies the existence of the mortgage, nor alleges knowledge of it on the part of -Bowers, nor attempts in any manner to reconcile the fairness of the sale of the lots with the existence of the incumbrance.
The Circuit Court erred in giving judgment for the plaintiff upon the demurrer to the rebutter, which embraced the plea and replication.
The judgment is reversed, and the proceedings subsequent to the second plea set aside, with costs. Cause remanded, with leave to the plaintiff to amend the replication.
