32 Wis. 491 | Wis. | 1873
The rule of Follett v. Heath, 15 Wis., 601, is not to be extended beyond the facts in the case then before the court. The facts there were, that the mortgage gave a totally false description of the note intended to be secured, or which was so claimed. The description was false and foreign in every particular, save that the names of the parties to the note, maker and payee, were correctly given. The note described differed, in amount, date and time of payment, altogether from that held by the mortgagee.
There is no such departure from a correct description in the present case. The mortgage does not purport to give the precise date of the note, but describes it as “acertain promissory note made and delivered on or about the eighth day of August, 1867." The note intended to be secured bore date the 6th day of August, 1867. The description reads, “signed by said Thomas P. Benton and W. W. Benton and W. H. Leeman, payable on or before one year from date.” The note was signed by the same parties, and payable on or before the first day of September 1868, being but twenty-five days more than one year from its date. The residue of the description contained in the mortgage is, that the note was payable “ to the N. W. U. P. Company for the sum of five thousand dollars.” The note' produced was payable to the Northwestern Union Packet Company at the First National Bank of La Crosse, and was for the sum of five thousand dollars. The abbreviations, or substitution of the initial letters, in describing the payee is a very simple matter, and cannot mislead any one. It does not render inaccurate, much less spoil the description. Neither is it a material circumstance that the place of payment, and the condition that the note might be paid by the delivery of a barge in lieu of-money, were omitted in the description. It is enough in such
The points of correspondence or accuracy, comparing the note itself with the description given of it in the mortgage, are in this instance quite numerous and unmistakable. First, there is the date, which, though not exactly, is sufficiently indicated to avoid any reasonable doubt; second, the time of payment in like manner indicated; third, the amount; fourth, the name of the payee; and fifth, the names in full of the subscribers of the note. With these particulars accurately stated, or so nearly so, the case seems to fall within the rule laid down in Robertson v. Stark, 15 N. H., 112, and sustained by the long line of authorities cited by counsel for the defendant. In that case Chief Justice PARKER says: “ Where a note, or other obligation, is offered in evidence in connection with a mortgage, it is not necessary that all the particulars of it should be specified in the condition of the mortgage, in order to identify it as the note intended to be secured by the mortgage. It will be sufficient if it is so far described that it appears, with reasonable certainty, to be the note or contract intended to be secured by the mortgage. If there should be certain particulars in which it agreed with the description in the condition, and certain other particulars in which it varied from it, the mere possession of it by the mortgagee might not furnish even prima facie evidence that it was the very note or contract intended to be described and secured; although, if the variances were in
“ But where the description is accurate so far as it goes, the paper offered in evidence merely containing other particulars, consistent with those set down in the condition, it seems to be quite clear that the possession and production of the instrument is prima facie evidence that it is the same mentioned in the condition.”
According to the rule thus given, and by a court of most respectable authority, it would seem that the note produced was admissible in evidence; or at least it seems very difficult for us to decide that it ought not to have been admitted,
But if we are wrong in this, then the parol proof offered by the defendant for the purpose of showing that the note produced was that intended to be secured by the mortgage, should have been received. The case of Follett v. Heath only holds that such proof is inadmissible in an action at law when the note produced is totally variant from that described in the mortgage. It is well settled, where the note agrees in some respects with that described in the mortgage, though it differs in others, that it may be proved by parol to be the note intended to be described in the mortgage. Williams v. Hilton, 35 Maine, 547; Partridge v. Swazey, 46 id., 414; Johns v. Church, 12 Pick, 557; Boody v. Davis, 20 N. H., 140; McKinster v. Babcock, 26 N. Y., 378; Hurd v. Bobinson, 11 Ohio St., 232.
The objection that there was no consideration to support the mortgage is itself without support. It was unnecessary that any consideration should pass at the time of its execution. A still existing past consideration was sufficient to support it. The liability of the mortgagee as surety upon the note was enough; and it was in legal effect and to all intents, so far as the consideration was concerned, the same as if he had taken such indemnity at the time of becoming such surety by signing the note, which unquestionably would have been valid.