13 Ala. 259 | Ala. | 1848
Lead Opinion
It is necessary to ascertain, in the first place, the nature of thé title of the plaintiff,' to the note 'dedared on, as that will aid us in coming to a correct conclusion, whether any of the defences relied on should have been allowed. Henderson, the payee of the note, sold to the plaintiffs in error, in June, 1840, a plantation and about ninety slaves, stock, farming utensils, 8fc. They executed to him eleven promissory notes, the first falling due the' first of May, 1841, and was for $5,000; one falling due on the first- of May of each year afterwards, each for $6,000; except the two' last notes — one of these was for seven; arid -the other-for $21,000. The notes due the first of May, 1844,1845,1846, and 1847, were assigned to the plaintiff, by Henderson on the first day of October, 1840, by deed, for the purpose-of securing certain-debts named in the deed of assignment — -the plaintiff at the same time, giving Henderson a receipt for them,' -by which he' Undertakes to collect "the - notes; arid apply the proceeds in the manner specified in-the deed. -The notes were also indorsed by Henderson to the plaintiff,'but nothing passed from Dunn to Henderson; except the receipt, which was merely an undertaking to collect -the notes; for the purposes indicated in the deed of assignment.
: In what condition, then,-does Dunn 'hold-the notes, or ■ what is the nature of'his title ? Jleisnbt a bona beholder for value, in the mercantile sense Of that term, for he has parted with nothing of value; he has paid’ nothing for them,
But the law permits a debtor to dispose of his property, with the view, and for the purpose of securing the payment of his debts, and when once he has so appropriated his property, the rights of his creditors intended to be secured thereby, attach upon it, and if it is conveyed to a trustee, who assents to the conveyance, and by virtue thereof takes possession of the property, can such a trustee be said to be a mere holder without consideration ? What is the consideration of such a conveyance ? It is to secure the payment of the debts of the grantor, and the trustee assenting to it,- undertakes to perform his duties according to the terms of the deed. Such a conveyance cannot be said to be without consideration, but is founded on such a consideration as the law deems valuable ; and the deed will be sustained for the purposes for which it is intended. As the law will sustain such a deed, and will coerce the trustee to perform the obligations he has assumed, the title to the property passes from the grantor for a lawful purpose, and on a consideration that will support the deed; and therefore the vendor cannot revoke the deed, nor reclaim the property, unless by paying the deb ts secured by it. The conveyance, then, to Dunn, and the indorsement of the notes, gave him a title to the notes, that could not be defeated by Henderson.
Nor could the defendants prevent Henderson from making such a disposition of the notes, nor defeat the transfer, by obtaining other offsets against Henderson, after notice thereof was given them. Dunn therefore holds the legal title to the notes, for a legal purpose, which purpose, neither Henderson nor the defendants can defeat.
We will1 now proceed to the defence relied on. First is an offset for the hire of horses, and two servants, in the year 1840. The horses were not returned, and their value was agreed on — the amount of this offset being something like $250. The next is, that four of the female slaves were un
If these authorities. are just expositions of the law, of course it would follow, that if the, debtor, after notice of the assignment,,pay .the payee in full, and neglect to have his offset adjusted, he could not be permitted, to assert that offset against the assignee. These authorities appear to me to be just; they are in unison with the maxim, sic utere tuo, ut alienwm non Icedas. Here Henderson had assigned the four notes,-falling due. May, 1844,. 1845, 1846, 1847, for $>.6,000 each — they are insufficient to pay in full the notes intended by them to.be secured; the defendants knew they were assigned to pay those debts named in.the deed; they had .the legal right to have their claims or offsets adjusted, and paid, in.the settlement of the two first notes held by Henderson. They waive their legal right, and now wish to assert this right to the prejudice of the creditors,.who have no other fund to look to -for payment, and who have not been, guilty of any negligence. I do not think they ought to be permitted. If the demands have not been .compensated, they now attempt to use as offsets, it has been either from negligence to their own interest, or from a waiver of their rights against Henderson.in the settlement of the two first notes, and .cer
The charge of the court was, that the evidence was insufficient to prevent a recovery on the note. Under this charge,. if by possibility the jury could have allowed any one of the debts, here attempted-to be asserted as offsets, in accordance - with the rules of law, as here laid down ; or if there was the slightest conflict in the testimony, the cause would be reversed. But not one of those claims should have been allowed as offsets; there is no conflict of testimony, unless it could be said to exist as to the unsoundness of the four slaves, and this case is decided, as if the defendants had the right to claim the abatement of ¡$1,200 against Henderson; therefore the judgment of the circuit court cannot be reversed. The propriety of this course is fully shown by the case of Simms v. Simms, 2 Ala. Rep. 117, and the case of Ralston v. Cullum & Smith, decided at the last term of this court, and Swift v. Fitzhugh, 9 Porter.
The judgment is affirmed.
Concurrence Opinion
I concur in the conclusions expressed in the opinion of my brother Dargan, and beg leave to subjoin a remark or two. It cannot be inferred from the declaration of Henderson at the time the notes were delivered to him, that he intended to transfer them, and that the makers might consider them as already transferred, that he did in fact dispose of his, right to them. An expressed intention to
It is explicitly stated that the two notes which first matured, were payable to the order of Henderson, and were produced by the defendant as evidence of their having been paid. Upon this statement, it cannot be inferred that the notes were indorsed or otherwise transferred by the payee. If they had not been indorsed, the intendment would be that they were paid to Henderson, in the absence of all proof on the point.
Uninfluenced by our statute, it may perhaps be conceded that a check or note payable to a certain person eo nomine or bearer, is not evidence per se of payment to the person whose name is inserted; because such a paper on its face would be payable to any person who might become its proprietor. If the note in question was ordered to be paid to some third person, either by a written or verbal transfer, or was in fact paid to some one else than the payee, it should have been proved. 7 Sergt. & R. Rep. 124 to 126.
Although, it is generally most proper to instruct the jury hypothetically upon the facts, I cannot think the evidence was so contradictory as to make the sweeping charge that was given erroneous. If the evidence had been demurred to by the plaintiff, it could not have been presumed in the absence of, if not against proof, that the notes which the defendants paid, had been transferred by the payee. Whether this was deemed an important inquiry in the primary court in the present posture of the case, can have no influence in determining what judgment we should pronounce. We must look at the record as it is presented to us, and from the disclosures there made, we must form an opinion whether the ruling of the circuit court should be supported.
Considering the agreement in' respect to what has been
If what I have said be maintainable, the cases cited in the opinion of the court from 12th Wendell and 6th Dana are directly in point. I may add, that these cases rest upon a principle which has been too often recognized to be successfully combatted. See also Taylor’s adm’rs, et al. v. Spindle, 2 Grattan’s Rep. 44.