39 Barb. 163 | N.Y. Sup. Ct. | 1863
By the Court,
I think there can he no doubt that title to the guaranty would pass by delivery with the note, for a good consideration, and t-liat a written assignment was unnecessary. This has been held as to a bond and mortgage. (Runyan v. Mersereau, 11 John. 534. Prescott v. Hull, 17 id. 284.)
It is also settled that the transfer of the original debt or claim, and delivery with it of the security, carried with it the title to the security, without any written assignment. (Green v. Hart, 1 John. 580. Langdon v. Buel, 9 Wend. 80. Parmelee v. Dann, 23 Bart. 461.)
The evidence showed the transfer of the note and guaranty to the plaintiff. The defendant did not in his answer allege any payment' of the debt. The presumption was that the note still remained unpaid. Ho objection was made to the non-production of the note, on the trial, and the defendants cannot now raise it on appeal.
The evidence shows that the plaintiff paid the amount of the indebtedness, and the witness transferred to the plaintiff the note and guaranty. This is not any payment of the debt of which the defendants could avail themselves without setting up the defense of payment in their answer. It is evident these defenses were not relied on .upon the trial. The case was tried on the defense that the guaranty'had not been transferred, or was not assignable. On this question the ruling was proper, and the judgment should be affirmed with costs.
