Lindsay v. Parrott

66 So. 412 | Miss. | 1914

Reed, J.,

delivered the opinion of the court.

Appellant filed a bill in chancery to foreclose a vendor’s lien, retained in a note given to evidence the purchase price of certain land conveyed by him to Green Washington, and to obtain a judgment against Washington and appellee for the balance owing on the note after the credit thereon of the net proceeds from the sale of the land in the foreclosure procedure. Appellant alleges in his bill:

‘ ‘ That said sale was made wholly on a credit and for the sum of three hundred and eighty-five dollars due and payable on December 1, 1908, with ten per cent, interest after maturity until paid, which sum of indebtedness is evidenced by the promissory note of Green Washington indorsed by George Parrott.”

Then follows a copy of the note, which shows that it was given in payment in full for the land purchased, and that the land was subject to a vendor’s lien, and further shows that it was signed by Green Washington and indorsed by George Parrott. It is averred in the bill that Washington and Parrott wholly failed to pay the note, or any part thereof, except a certain sum, which had been credited thereon.

. A demurrer was filed by appellee to the bill, on the ground that the bill failed to show that the note sued on was duly protested for nonpayment and notice thereof given to appellee as required by law. The chancellor sustained the demurrer and dismissed the bill as to Parrott. . To show his holding, we quote from the decree as follows:

“That the said Georg’e Parrott is not liable on said note as indorser, for the reason that complainant failed to protest said note, and to give the said George Parrott notice of the nonpayment of said note, as he was legally entitled to under the law.”

We understand from the averments in the bill that, at the time of the sale of the land and the execution of the deed therefor, the note sued on, duly signed by Green Washington and indorsed by appellee, George Parrott, was delivered to appellant in payment of the purchase price. It appears from the bill that the note was signed and indorsed before delivery. Appellee, by placing his name on the note as indorser thereof before its delivery, became a comaker thereof, and thereby rendered himself liable to the payee as an original promissor. Such being the case, protest of the note and notice of nonpayment was not necessary in order to hold appellee. Polkinhorne v. Hendricks, 61 Miss. 366; Richardson v. Foster, 73 Miss. 12, 18 So. 573, 55 Am. St. Rep. 481; Pearl v. Cortright, 81 Miss. 300, 33 So. 72.

Reversed and remanded.