Ewing v. Scott

2 Iowa 447 | Iowa | 1856

Stockton; J.'

The first, second, and fourth assignments of error, question the correctness of the decision of the court below, in giving certain instructions asked by plaintiff, and in refusing those asked by defendants. The charge of the court to the jury, was reduced to writing. The instructions asked by the plaintiff, were also in writing, as well as those asked by defendants, and refused by the court. The charge •of the court, together with the .instructions .given and refused, are copied into the transcript. Whether they are properly a part of the record, and whether the giving or re-' fusing of said instructions, can be assigned for error in this court, unless excepted to at the time, and the exceptions made part of the record, is our first inquiry. The doctrine has been too long settled, to be now disturbed, that this court will regard no assignment of error, based upon the giving or refusing any instruction in the court below, unless it appears that exception was taken at the time, and the instruction embodied in a bill of exceptions, and made part of the record. In other words, we will regard no errors which •do not appear of record. To make the instructions of the court a part of the record, they must be embodied in a bill of exceptions; otherwise, they will not be so regarded, though they may be in writing, and copied into the transcript by the clerk. Brewington v. Patton & Swan, 1 Iowa, 121; Harriman v. The State, 2 G. Greene, 280.

The third assignment of error, is, “ that the court erred in refusing the evidence offered by defendants in the court below.” It does not appear very clearly, from the bill of exceptions, whether the evidence sought to be introduced by defendants, was intended to show the value of the land conveyed to Green by the Scotts, as trustee to secure the payment of the note; or whether it referred to the note itself. The bill of exceptions shows, that defendants offered to prove the value of the property pledged to said plaintiff, proposing to follow it up with proof, 'to show that plaintiff had converted the pledge to his own use, and that the property was worth five or six times the amount of the debt it was pledged to secure.

Without undertaking to decide, whether or not this evidence would have been proper, under some other state of pleadings, we are satisfied that it was properly ruled out, under the issues joined in this cause. Scott, in his answer, admits that he knew of the transfer, or pledge, of the note, by Clendenin to Ewing, and that while the note was in Ewing’s hands, he had paid him fifty dollars on it, but denies that the note was the property of Ewing, and avers that the note had been fully paid, and the deed of trust canceled. Clendenin, in answer, avers that the note and deed of trust were placed in plaintiff’s possession, as a pledge or security for the sum of $50, borrowed, to be repaid in six months, with interest; that the amount has been paid, or tendered to plaintiff; and that the note and deed of trust were no longer the property of plaintiff, and that nothing was due plaintiff thereon. The replication of plaintiff avers, that it was expressly agreed, that plaintiff was to collect the note on Scott, and pay himself the said sum of $50, and also $25, borrowed of him by Clendenin, with interest, and pay the remainder to Clendenin; denies that the money borrowed had been tendered him; that the deed of trust and. note, or either of them, are paid or canceled; avers that Clendenin unlawfully entered a cancelation of the deed of trust on the county records, and that said attempted cancelation is void, as at the time, plaintiff, and not Clendenin, was the owner' of the nóte and deed of trust; plaintiff also denies, specifically, the answers of defendants.

The issues joined were: First, whether the money lent by Ewing to Clendenin, had been repaid to him, with interest ; and Second, whether the Scotts had fully paid the note sued on. Any evidence tending to elucidate these two questions, would have been relevant, and should have been admitted. The defendant introduced and read to the jury, a deed made by A. D. Green to Jno. G. Eoote, for the land conveyed by Scott to Green, as trustee, to secure the payment of the note assigned to plaintiff. Green, at the instance of Ewing, the holder of the note, had advertised and sold the land under the deed of trust; it brought only seven dollars at the sale, and Green conveyed the land to the pur©baser. We take it, tbat tbe offer of tbe defendant was to show tbe value of tbis land, and tbat plaintiff bad converted •it to bis own use. We are not certain'that tbis was tbe object of defendant, owing to tbe obseurity of tbe language used: but we cannot arrive satisfactorily at any other conclusion. It is true that it was tbe note tbat was pledged to Ewing, and we might be led to suppose from tbis fact, tbat tbe language of tbe bill of exceptions was intended to refer to tbe note of Scott, and to its conversion by plaintiff; but it can hardly be seriously contended, tbat plaintiff bad converted tbe note to bis own use, by bringing suit on it. Ewing bad acquired a special property in tbe note, by tbe assignment — the general property remaining in Clendenin, who •bad tbe right of redemption, even after default made by him in complying with bis engagement. 2 Kent’s Com. 452 •) Story on Bailments, §808. After tbe time stipulated for payment of tbe money borrowed of him, by Clendenin, Ewing might either sell tbe property pledged, or if, as in tbis case, it is a negotiable instrument, be might bring suit upon it, to enforce tbe collection of tbe amount due him from tbe pledgor.

Tbe assignment of tbe note, so far as it transferred tbe property therein to Ewing, carried with it tbe right to any security tbe makers of tbe note bad given to tbe original bolder. Upon default made by Clendenin, Ewing, as tbe •assignee and bolder thereof, bad tbe right to require Green, tbe trustee, to sell tbe land conveyed to him by Scott, to secure tbe payment of tbe note. If tbe land, when offered at public sale, did not bring enough to pay tbe note, or did not sell for its full value, we do not see tbat such failure can be in any manner attributable to plaintiff, or tbat be can -on any safe ground, be held to accountability, as having, by requiring tbe land to be sold, converted tbe security to bis •own use. It does not appear from tbe bill of exceptions, that there was any evidence offered, to show that Ewing bad been paid bis money loaned, with interest, or tbat it bad been tendered him; nor is it contended tbat the evidence excluded by tbe court, would have tended to prove that fact. Tbe defendant, Scott, having admitted in bis answer,, that be was informed of tbe transfer of tbe note to plaintiff,, and that after such transfer, be bad paid a part of it to plaintiff, any evidence going to show that after snob transfer and .notice, Scott bad paid tbe note to Clendenin, and procured Clendenin to cancel tbe deed of trust, was clearly inadmissible. We do not see bow the evidence sought to be given by defendant, and excluded by tbe court, could bave been properly received under tbe issues joined. Such evidence-Could only bave amounted to this: that the land, at the instance of Ewing, bad been offered at public sale by Green, tbe trustee, and bad not brought as much as it was worth.. Under what state of pleading, in this cause, any such testimony would bave been admissible, we will not undertake-•to decide; but we are clearly of opinion, that there was no-error in the rejection by tbe District Court, under tbe state-of pleading tbe record exhibits..

Judgment affixmefL