4 Neb. 516 | Neb. | 1876
This is an aetionlo foreclose a mortgage, and is brought into this court upon appeal from the decree of the district court. The mortgage was executed by the defendant to one W. G. Wilson, January 2,1872, to secure the payment of a promissory note of the same date, executed by the same parties to said Wilson, and payable two years after the date thereof.
The proofs show that on the twelfth day of March, 1872, for a valuable consideration, Wilson sold and assigned the mortgage to one J. T. Deweese, and that on the fifteenth day of March, 1873,= for a valuable consideration, Deweese sold and assigned the note and mortgage to Charles and Nelson Moses. Charles Moses afterwards sold and assigned his interest in the note and mortgage to Nelson Moses, the plaintiff in this action. The note, mortgage, and the assignments, were executed in the state of Ohio, where the parties resided. The mortgaged property is situated in Omaha, Douglas county, in this state; the plaintiff brought his action in that county, and the lex fori must govern as to the remedy.
The main ground of defense alleged and relied on is, that the consideration in the note and mortgage was a patent right for a sewing machine treadle, and the good
“$25001 Cleveland, Jan’y 2, 1872.
Two years after date we promise to pay William G. Wilson, or order, twenty-five hundred dollars, value received, with interest at six per cent, per annum.
Geo. W.' Comstock.
Clara L. Comstock.”
It is drawn in the ordinary form of *a negotiable note; the plaintiff purchased it before maturity, in the regular course of business, and paid for it a full consideration without notice of any existent equities between the original parties, or of any defense against it by the payors. Elence, under the well settled, rules of law, so far as the face of the note shows, the plaintiff tools it unaffected by any equities whatever. But it is alleged that the note was given, in part at least, for a patent right, and that the law of the state of Ohio prescribes certain particular words to be inserted in the body of such notes, subjecting a them to all defenses as if owned by the original promisee; and therefore the omission of such words renders the note void.
The rule will not be questioned that, at common law, the purchase-of a patent right is a good consideration for a note; it is said that when the consideration is a license to use and vend an invention regularly patented, the unprofitableness of the invention does not vitiate the note. 3 Am. R., 435. Nash v. Lull, 102 Mass., 60. Therefore, if this defense can be set up, it must be in pursuance of some positive law, and strictly within the purview of such law.
It is, however, contended that “the note was taken in violation of the statute; that the payee could not enforce it, and of course could not enforce the mortgage securing .it,” and therefore, while the note might not be void in the hands of a bona fide holder, the mortgage is subject to the same defense as if held by the mortgagee. • As already stated there is no proof of any statute in force in Ohio in regard to such notes. But it is further contended that “when the note and mortgage were executed and
And now it is not necessary to review the authorities pro and con upon this question, and hence I need only further observe that the doctrine seems now to be established, as the common law rule, that negotiability inheres in the mortgage just the same as it does in the note; and we must be governed by this rule, liowbeit the reasoning of the cases in support of it may fail to satisfy me that a mortgage is not precisely the same instrument, with the same inherent charater and qualities, whether it be made to secure a note negotiable or non-negotiable, or no note at all; or that a mortgage has not a character of its own, as a deed or instrument conveying an equitable title to,
Decree aeeirmed.