83 Neb. 718 | Neb. | 1909
In 1894 the defendant purchased a tract of land situated in Box Butte county subject to a principal mortgage of $275 and to a second or interest mortgage for $18. Default had been made upon this mortgage, and after the commencement of a suit to foreclose the same the defendant applied for a renewal to the Globe Investment Company, in whose name the original mortgage appears to have been held. In response to that application the company made a statement of the amount due, and offered to renew the note for $275 upon payment by the defendant of interest and costs. The note in suit was executed in pursuance of such arrangement, and the defendant paid a certain amount of money to apply on the interest and costs. But a dispute appears to have arisen as to the amount which should be paid on that account, the representative of the investment company demanding a payment of $19 more than defendant had paid, and this demand
1. The defendant contends that the indorsement of the note in question to the plaintiff by the receiver of the insolvent company, in whose name it was taken, was insufficient to vest the legal title thereto in the plaintiff. No authorities are cited to sustain this proposition, nor are we referred to any legal principle by which it is upheld. The legal title to the note in question was first in the investment company, and it passed to the receiver by virtue of his appointment. When he indorsed it to the plaintiff, the legal title vested in the latter. The equitable title was in Chaplin, and when the receiver was appointed in September, 1895, he held that title for the benefit of Chaplin. When in October, 1896, Chaplin made the sale to plaintiff, the receiver then held the title for the benefit of the plaintiff; and when the receiver afterwards
2. The plaintiff contends that the facts shown concerning the status of the foreclosure suit would not constitute a defense to this note in the hands of the original payee. It is argued that the evidence shows that the defendant has lost nothing by the failure- to satisfy the original mortgage, and that he sold the land with the understanding that said mortgage was satisfied, and received full compensation for the same without deducting anything on account of the existence thereof. Whether the evidence would justify this conclusion it is not necessary for us to determine, for we think the defendant was entitled to have such mortgage satisfied, and that an action could npt be maintained upon the renewal note while the decree upon the original mortgage was in full force and effect.
3. But a failure of consideration is not a defense to a negotiable note in the hands of a bona fide holder for value, who acquired it before maturity in due course of business and without notice of such defect. The note in question was dated September 1, 3894, and was due September 1, 1899, so that whether the date of the purchase or actual indorsement is taken as the date of the transfer the plaintiff received it before maturity. The plaintiff is the only witness who testifies to the facts of the transaction
It is to be observed that the real question was whether the plaintiff knew that this was a renewal note, and that the original note which it was given to renew had not been satisfied, or whether he was under the circumstances guilty of negligence or of want of proper' caution. It is claimed by defendant that the evidence shows that the plaintiff knew of the fact of this being a renewal note at the time he testified, and that it therefore follows that he must have known it at the time of the purchase. But this is not necessarily true. The questions whether the holder of current negotiable paper has taken it with or without notice of defenses between prior parties, and whether he has exercised good faith in the transaction or has been guilty of negligence or a want of proper caution, are always questions of fact to be submitted to a jury when the evidence is conflicting or when from the facts proved different minds might honestly draw different conclusions. 1 Thompson, Trials, sec. 1239. And, while we deem it unnecessary to determine ■ whether the facts before the court would have sustained a verdict for the defendant had the question been submitted to the jury, we are satisfied that it did not justify a peremptory instruction by the court for the defendant. The only way a conclusion that the defendant had notice of this fact could be reached would be by inferences drawn from the facts to which he testified, and these inferences, if made at all, must be made by the jury.
We therefore recommend that the judgment of the district court be reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.