*1 ' y. Prouty Musquiz. 1900.] find in that case decide we did not it necessary established the question.
A has removed our doubt upon point. further consideration made Robinson rule was to dismiss the appeal, argument not the be difficult to But such is rule. case would answer. a of the trial judgment the case. Such dismissal vacates
dismiss between court and leaves a subsequent litigation parties In Gordon adjudication. fees of the unembarrassed a former by office State, Texas, 208, Duffy, 767, the suits Lacoste v. dismissed; Civil were and such was the Court of judgment Ap note, however, in this We that the learned who wrote case. peals judge were “of the court said appeal opinion opinion should be dismissed.” This was result inadvertence. doubtless the is refused. The writ error
Refused. Cheney Musquiz. R. Rafael 22,
No. Decided October Assignment. Negotiable' Instrument—Parol by 307, Statutes, places the of a an Article Revised footing assignment writing indorsee the same an at common law. (Pp. 90, 91.) Proof. 2. Same—Notice—Burden of by promissory note If the in a suit a maturity, previous assignee by parol paid a value for the before transaction, faith in the if to show bad and or there were no facts event, in either after the defense arose the execution had notice of the that such burden was (Pp. 91-93.) defense. Fourth Civil from the Court of Appeals certified Question District, County. from Maverick appeal Fuller, The note Clark, Ball & Winchester Kelso for appellant. Biddle, valuable of James to the order in question, being payable maturity, E. to Sarah Eager, consideration was its ma indorsement, delivery. Eager Mrs. but simply Rafael writing, Musquiz. indorsement turity assigned if in the hands said R. maker, C. Prouty, Under this state set-offs. Biddle, in the nature of discounts James certified of this argument upon facts, which for purposes is, that true, appellant the position we treat as question, - re before she could things show three was on de must show the note was She the offsets: (1) cover as That she maturity. (2) livered parol „ no notice of she had the de- That therefor. (3)' consideration note. appellant fenses Reports. 94 Texas is decided case of Word v. Southwestern Re Ellwood, 37 307, the defenses Revised
porter, Stat permitted by utes, are bona fide available transferee before what *2 of the transfer, ever form and whether it written or verbal. be Said should obtain such in provides, assignee strument its consideration, before for it a valuable maturity, by giving and it, without or any discounts defenses then he against shall be to allow discounts only just himself. compelled against occurs to us that the has an statute important bearing this at upon the issue. natural the burden question its By reading put to show that such instrument obtained assignee before its maturity, for it a valuable without by giving consideration, and it, or any discounts defenses before can against defeat assignee such defenses. If the Legislature intended that burden should would have expressed such intent different The natural language. to such a to way rule as the burden of express would been, “but should he obtain such instrument before consideration, without for ait and maturity, giving with it, notice of discounts or any defenses then he shall be against com to just himself, allow the discounts well as pelled against as any dis counts or defenses the maker.” against statute read it way, would put maker; but it reads in proof upon the the re order, verse instrument, and an requires that such in the hands of an assignee, must to have been appear acquired maturity by giving for it a valuable without consideration, and notice of any discounts and defenses in order to enable such to assignee defend such and An discounts defenses. indorsee and holder writ by ten indorsement with this burden complies by the production indorsement, note with the written because under the law he is pre value, sumed to have it for without no tice failure of Blum any Texas, 121; consideration. v. Loggins, Gunter, Herman 83 Texas, 68. But an indorsee holding by parol is aided no' must, such and he by adduced presumptions, by proof stand, the witness show This, our mind, clearly the burden puts assignee himself within the bring Elwood, purview While, the statute. under the case cited of Word v. be made assignment may by parol brought within statute, of said provisions still is settled such an in strument mere negotiated delivery, indorsement, by that the title 4 Am. equitable Law, ed., passes. Eng. The statute in has law since 1840. In been the the case of v. Smith, Texas, Ross decided Chief Justice Hemphill, find that a note to order was transferred In by delivery only. “The only case the learned judge says: whether the instrument will authorize the possession suit, or bring transfer, whether fact of he must delivery a valuable (cid:127) other consideration. seems clear that sufficient he must prove Pbottty y. Musquiz. 1900.1 into possession. consideration he came and for a sufficient honestly note passes a negotiable secured by Where the to the debt legal right commerce, has recognized law, the benefit delivery, is, conse- possession with the passing possession, property is an But this exception facie of title. quently, prima does not chattels, and personal rule not negotiable.” which are of notes extend the possession the fol- 500, the court uses of Davis Sittig, In the case Lewis, after H. Alfred further show that “They lowing language: his interest therein transferred before its maturity, note was lost but therefor, and to have Lewis, A. who is not shown to Charles it to appellee. of the lost he, facts, the note that, existing held below court properly have been urged which could subject The note whom it was made payable. hands of person indorsement, as is but was not transferred form *3 in It was not the pos- such title to legal paper. necessary pass that is it shown was made nor to whom it payable, of the party session value ever assigned paid it was to whom the person into the under such it came that facts It is well settled therefor. of it to all defenses the maker subject of the plaintiff ownership Lewis, H. and hands of Alfred it were it yet could urge against facts which attended its ex- with notice of the that he stands charged ecution.” our courts treat a parol two cases establish that
These undoubtedly title only, notwithstanding the equitable passing the holder of a note also show that referred to. They statute above indorsed, to assume form, not the burden required negotiable It will be right under the statute to show necessary of Davis v. lays par- case Stayton, Sittig, observed that Judge shown that the fact that was not ticular stress upon such that note,—clearly unmistakably showing for the in that It was not under the facts necessary, him. burden notice, but our of statute case, requires to discuss him to show that a holder, in the same clause he enjoining upon gave also show he shall valuable consideration it. how or defenses We do not see notice of discount it without statute, held, in view of the used well it could be show, circumstances, such the holder to was upon the burden therefor, but the burden a valuable consideration he had notice of discounts the maker to show that would be upon must statute, named and they conditions are defenses. Both a must show both the of payment in order to available. He concur of discounts or of notice defenses. consideration and a want in his favor. Assert- exists title, Hot legal presumption having of showing he must assume the burden a to recover ing right equity, unassisted and the of recovery, presumptions. ownership Repoets. 90 94 Texas a of that, rule one equity peculiar knowledge party possessed evidentiary facts, which the other claims were not party brought forward, the-latter, sustain the claim of and if the party pos sessed of facts, such fails forward the a knowledge bring presump tion arises him. must be conceded that whether or Mrs. a the discounts was matter insist, is, within peculiarly knowledge, her failure to knowledge, want would arise prove presumption Burnham, that she had S., v. 153 216 ; U. Runkle knowledge. States, Graves v. United S., 150 U.
The burden is
him
knows the
who best
facts. Ryan Railway,
v.
65 Texas,
When,
this,
in connection with
it is taken into consid-
eration that the note
its face showed no
Eager,
title
she took
equitable title
it seems
upon proof
parol delivery,
clear to us that the
rule is that
her to
proper
that she
the note without
defenses. Loan Co. v.
47;
Taylor,
Texas,
Burnett,
Texas,
650;
v.
v.
McAlpine
Twohig
Brown,
In a suit must allege notice his defense to the and has the burden of same. 14 Pl. proving Prac., 641; Gee v. Saunders, 333; Heller, Malsch v. 384; S. W. Gunter, Herman Rep., v. 18 W. 428; S. Rep., Wright Hardie, 675; S. W. Rische Rep., Bank, 19 S. W. Rep., whom the onus rests probandi first instance *4 is determined 5 usually byr the state of the Am. and pleadings: Eng. ed., Law, 25, new note
GAINES, Chief Justice. comes to us This case certificate upon a the showing following question: statement “A negotiable executed R. promissory by Cheney Riddle, order, the latter’s James the for valuable consideration to payee Sarah E. Eager, by delivery only,—that say by parol indorsement. delivery it Rafael The above Eager is a assigned Musquiz. of theory the fact record material to case. presented by case, “In such is the burden of proof upon Musquiz, the holder of to show that Mrs. had no notice the maker’s de- discounts, or fenses, set-offs, or was against the burden upon to, show that she had such Prouty, she acquired the note?”
Article 307
our
Revised
is as
Statutes
follows:
“Any person
whom
any
instruments
have been
negotiable
may
assigned,
Pbouty
Musqtjiz.
v.
1900.}
obligee
the original
maintain
action
his own name which
any
may
all
dis
allow
only
just
have
shall not
brought;
might
payee
after it
himself, but,
same
became
counts
if he obtained the
against
due,
assignor
allow all just
he shall also
discounts
defendant;
he ob
but should
notice of the
to the
assignment
given
for it a valuable
tain
its maturity, by giving
such instrument before
or defense
consideration, and without notice of
discount
any
discounts
just'
then he shall be
to allow
compelled
only
in the case
this court
himself.” This statute was construed
Ellwood, 90
that “the form
Texas, 130,
Word v.
and it was there held
immaterial,” and that
transfer,
verbal,
whether written or
“the
to all
within
statute extends its
assignees coming
protection
terms,
not
their instruments
accord
though
may
acquired
the law mer
ance with the technical rules
transfers under
regulating
chant'.” The holder of a
instrument
negotiable
at com
same
as an indorsee
being
footing
writing
placed upon
law,
mon
it follows that the rule of the commercial law must determine
in the
unless
should be held that
something
there
In
to indicate a
that rule.
change
the statute
language
purpose
Texas, 653,
314 in reference to
Hardie,
article
Wright
construing
burden of
case of a
or failure of considera
of want
proof
plea
tion, we held that
made it
the intent of the
plain
value,
was that
that he had
showed
Legislature
onus
on
So in
to show
part.
defendant
Tillman v.
Heller,
597,
it was held that
the statute
rela
tion to the transfer of
in fraud of creditors indicated the order
in which
shift in a
should
case between
creditor
and one
to be an innocent
for value. But in Mc
claiming
purchaser
Finch,
court,
Texas, 831,
Alpin
construing
the same as article 307 of the Revised
Hartley’s
Digest,
above,
“But
do not understand
Statutes
the statute
quoted
say:
intended,to
or as
affect the
of the burden of
as affecting
in that
hold
it is
The court
case further
case
proof.”
burden is
of the note
inception
illegality
that he or some
under whom he claims had
one
in Blum v.
value for the
before maturity. Again,
Loggins,
Texas, 121,
Moore,
Chief
with
the doctrine
Justice
quoting
approval
Instruments,
on
section
negotiable
says
announced in Daniels
of a
“that ‘mere
produced
possession
indorsement
when no
is necessary
indorsee or assignee
imports
fide for full value in
usual
bona
facie that
prima
and without notice of
circum
of business before
course
*5
he,
owner,
and that
as the'
is entitled
its validity,’
stance impeaching
there
be a
notwithstanding
might
good
the
to
recover
To let in a
the
defense
the
payee.
instrument against
defense
the
must first
that
the maker
there was
the assignee,
maker against
instrument,
of the
or show circum-
in the inception
fraud
illegality
Repobts.
94 Texas
which raise a strong
stances
of fraud or
When this
suspicion
illegality.
will
done,
is
devolve
the
to show that he
the
upon
‘acquired
bona fi.de
business,
for value
the usual course of
while
current, and
circumstances
create
no
that
presumption
”
facts which
knew the
its
the
of the
impeach
validity.’
is
policy
law
the
and,
merchant
promote
negotiability
commercial paper,
reason,
that
is held
as to defenses not
involving
burden,
of such
execution
as
uttering
paper,
upon
the defendant to show
that
either with
plaintiff
paper
out
value or
he had
But
paying
that
the defense.
fraud, it
held
suppression
cases
that
involving
element
instrument,
inception
dictates,
sound
order
policy
to avoid
defense,
shown,
plaintiff,
fraud is
should
prove that
obtained the
faith and
good
for a
But
how
valuable consideration.
as
far the
faith,
in order to show
plaintiff is
the authorities
go
good
seem
to be in full accord.
weight
authority
however,
The
we think
he has shown that he has
value in the usual
course of
paid
transfer
no
business and the circumstances
cast
attending
suspicion
intent,
further,
fairness of his
he need
go
and it then
devolves
show notice to him in order to
defeat
This seems to be based
theory
proof by
under,
he has
circumstances
raises a pre
faith which the defendant
good
called
sumption
rebut.
understand
Such we
to be the doctrine laid down
text-writer
Daniel,
mentioned (1
previously
Negotiable Instruments,
section 819);
in our
which,
and is the doctrine
opinion,
supported by
prevail
Bank v. Dawson,
67;
ing weight
authority.
Ala.,
Battles v.
446;
84 Pa. St.,
Johnson v.
1900.} opinion. CORRECTED Our attentionhas been called to Justice. GAINES, Chief made in the case a mistake was in our filed opinion fact that say: In course of that opinion, certified. to the question answer has however, when he as we think authority weight “The value in the usual course business that he has shown fair- no the transfer east attending suspicion circumstances further, and it then devolves intent, need no go his ness of a recovery.” to him order to defeat defendant in- that we us the discussion to indicate nothing There is it is therefore to the contrary weight authority, tended hold to answer that the burden our evident that purpose that he pro- had proved to show notice defendant under circumstances value before cured the for faith his The mistake was of bad part. on creating suspicion his writer, associates of the and it was discovered mistake for was read them approval. opinion rectified, therefore, of the mistake should be is proper in our former motion, answer given our we order that the specific own be aside, and that in thereof the answer following be lieu set opinion Fourth of Civil Judicial Supreme to the Court Appeals’for certified fraud, “If the was procured by District for their observance: that Mrs. value for and if the the note and if there were no facts in faith the transaction or if show bad the defense arose part, event, of the after the execution either to show that she had notice of defense.” 12, 1900. Filed November T. Carlton
Pollie et al. v. Charles Goebler.
No. 928. Decided October Community Community Property—Sale Debt. Community may payment community by" property be sold for the debts husband, judgment against community surviving him or under execution on (P. administrator, living 97.) debt, or dead. his whether wife Same—Independent Executor. independent executor, provision appointment without other an his either authority do, restricting powers, enlarging him without an confers every perform order; could court, act which an administrator with such order of community pay community may debts without an order. hence sell (P. 97.) of Executor. Construed—Powers 3i Same—Will appointing independent power to surviving executor with husband A will authority testator, does such executor’s manage not restrict estate „ separate estate; his testator’s estate includes .administration community community payment Especially property to the .apply debts.