2 Cal. 163 | Cal. | 1852
delivered the opinion of the Court. Upon the trial of this cause, the Court below held that the facts that the notes upon which the suit was brought were given in consideration of a conveyance of real estate, to be made by the plaintiff’s indorser; upon the payment of the last note, and that the indorser had never made or tendered such conveyance, constituted no sufficient defence. This case comes clearly within the rule laid down by this Court, in the case of Osborn et al. v. Elliott. The covenant in the bond to convey, and the promise to pay the notes, must be taken as dependent agreements. The notes were indorsed after maturity; and the indorsee, consequently, took them subject to .all legal and equitable defences. The fact that this action is brought upon the defendant’s notes, and not upon an undertaking or covenant in the bond, cannot alter the case. An indorsee after maturity takes the same inte rest as the indorser had; and his claim is subject to the same defence.
Judgment of the Court below reversed, and new trial ordered, with costs.