Draper v. Saxton

| Mass. | Sep 30, 1875

Endicott, J.

The court properly refused to rule that the mortgage was void, as an assignment of collateral security before the debt was due.

The mortgage and the note, which was on demand, were given to secure Stebbins for his liability on certain notes of the mortgagor, which Stebbins had indorsed, and to cover future liabilities which Stebbins might assume for the mortgagor. Before the assignment of the note and mortgage to the plaintiff, and after the notes upon which Stebbins was indorser were due, he took them up by a note signed by himself and the defendant. This operated as a payment of the original notes, the relations of the parties were changed, the liability of the mortgagor was discharged except to Stebbins and the defendant, and Stebbins could have foreclosed his mortgage. Washburn v. Pond, 2 Allen, 474.

The assignment of the note and mortgage to the plaintiff bj Stebbins was therefore not within the provisions of the Gen. Sts. c. 161, § 64, making it criminal for the holder of collateral security to assign it before the debt it was intended to secure became due and payable. Even where security is assigned in violation of this statute provision, the title of an innocent assignee, who takes for value and without notice, is not affected by the fraud of the assignor; and this case finds that the plaintiff had no knowledge that the note and mortgage were held by Stebbins as collateral. See Gardner v. Gager, 1 Allen, 502. The sum for which judgment was rendered was less than the amount due Stebbins on account of his payment, so no question arises whether more than that amount could be recovered.

No ruling was asked or exception taken at the trial in regard to the notice of foreclosure, the record of the assignment, or the delivery of the mortgaged property, and those questions are not open on this bill of exceptions.

The witness Tucker was properly allowed to testify to the value of the tobacco crop of 1872 in that vicinity. The objection is not made to the witness, on the ground of his want of knowledge or experience, but to the competency of the evidence itself. Such evidence is competent for the purpose of ascertaining the market value of a certain class or kind of property, and may assist in determining the value of an article belonging to that class, although the value of the particular article may vary according to its condition and quality. The competency of this evidence is fully considered and the cases cited in Miller v. Smith, 112 Mass, 470. Exceptions overruled.