Chesser v. ChesserChesser v. Chesser
Thе appellee filed his hill in chancery against the appellant and Charley Cason fоr the foreclosure of a mortgage alleged to have been executed by the appellant to the appellee upon certain described lands to securе the payment of a promissory note executed by the appellant to the ordеr of the appellee for the sum of $500.00, and also for an injunction against the appеllee and his co-defendant to prevent them from cutting and removing the timber growing on such lands, and for general relief. The appellant filed his answer under oath, although the same had been expressly waived, in which he admitted the execution of the note and mortgage; but averred a total want of consideration. A replication was filed to the answer and the сause was referred to an examiner to take and report the testimony which might be adduced by the respective parties. Upon the filing of the testimony so taken, the cause came on for a final hearing and a final decree was rendered in favor of the cоmplainant against the de
Very concisely stated, the appellant avers in his answer that he was not indebted to the аppellee in any sum and that the mortgage and note were executed without any consideration whatever. The appellant proceeds to set out at some length the facts and circumstances under which the note and mortgage were executed, which, in briеf, are to the effect that the appellant had a nephew by the name of John Chеsser, who was engaged in the mercantile business prior to and at the time that the note and mortgage were executed, who had become largely indebted to various mercantile firms, who had instituted actions against him and the appellant as co-partners, though in truth and in fact no such co-partnership had ever existed; that the appellant became alarmed over the bringing of such actions and, never having had any experience in litigation аnd being an ignorant man, he went to a certain justice of the peace for counsel, who advised him to execute a note and mortgage to some one in whom he had cоnfidence; that the appellant then went to the appellee, who is his brother and whо advised the appellant to make the note and mortgage to him, the appellee, which the appellant did, there being no consideration therefor whatever. The аverments in the answer as to the want of the consideration are direct, positive and сertain, so that the bxirden of proving the consideration was thereby cast upon the complainant. Mayo v. Hughes,
“In an action brought by the administrator of a mortgagee against the mortgagor to recоver possession of land mortgaged to secure the payment of á promissory note, it is а good defence that the note was given without consideration; and the demandant Cannоt rebut such defence, either by direct evidence showing that the note was also given with a view to defraud the creditors of the mortgagor, or by arguing to the jury, from other evidence in the case, that it was so given.”
As was said by Chief Justice Shaw in the opinion: “The general policy is, in pari delicto potior est conditio defendentis. If there was an intent to defraud creditors, it was an intent common to both parties, affecting as wеll the plaintiff’s intestate as the defendant. It is the plaintiff who is the actor and is seeking to enfоrce the payment of these notes.” Also see to the same effect, Hannan v. Hannаn,