89 Kan. 739 | Kan. | 1913
The opinion of the court was delivered by
The Offensteins gave their note for $750, payable to the order of Hymeneus Weygandt, secured by a real-estate mortgage. At maturity they
The contention of Weygandt that no cause of action was stated, seems to us sound. The fact that plaintiffs owed the debt, that it was due, and that the original note and mortgage, showing no indorsement or assignment of any character, were in the payee’s possession and were delivered to them at the time the note was ■paid are all set forth in the pleadings. What right have plaintiffs to recover money which they have paid on a debt justly due from them? Their claim is, that because the assignment of a mortgage carries with it the debt, the partial assignment conveyed to the as-signee a one-third interest of the note and that they are still liable to the assignee for the payment of $250. But they had not paid it to the assignee, nor had it been demanded of them at the time this action was commenced. The defendant’s main contention is, that .under the negotiable instrument law (Gen. Stat. 1909, •:§§ 5284, 5285) the partial assignment by a separate ■ instrument could not make the assignee a holder in due •■course, and therefore that plaintiffs have a valid de..fense to -any action which the assignee might bring ..against them. Section 5284 provides that:
“The indorsement must be written on the instrument itself, or upón a paper attached thereto.”
“The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee.a part only of the amount payable, or which' purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the -instrument; but where the instrument has been paid in part, it may be indorsed as to the residue.”
These requirements of the negotiable instrument law are essential in order to make the transferee a holder in due course. Since the assignee never became a holder in due course, the plaintiffs could have inter-, posed the same defense of payment in an actio® brought against them by the assignee as if the defendant himself had sued them.
Of course, the plaintiffs were entitled to equitable-: relief. They should have brought all the parties into court and by offering to do equity, consenting that the-$250 payment be applied upon the debt, have askedE for a decree that the mortgage be canceled and that they recover their costs; but upon their own statement of the facts, they can not maintain this action, and the court should have sustained defendant’s objection to the introduction of evidence.
The judgment is reversed with directions to enter judgment for defendant for costs.