138 Ind. 210 | Ind. | 1894
This was an action brought by the appellee Susannah North, against Ananias D. Hensler, Mary Hensler, the First National Bank of Peru, Indiana, Richard A. Edwards, and Milton Shirk, to foreclose a mortgage on certain real estate in Howard county, in the State of Indiana, against Ananias D. Hensler for the amount due on two notes of two hundred dollars each, and to recover said notes, which she averred were in the-
The defendants, the First National Bank of Peru, Indiana, Edwards, and Shirk each filed separate demurrers to the complaint, which demurrers were severally overruled, and each excepted thereto. The last three named defendants filed their joint answer in denial. Thereupon the defendants, the First National Bank oí Peru, Indiana, and Edwards, each filed a separate answer in disclaimer. The defendant Shirk filed his separate answer in one paragraph, to which a demurrer was sustained by the court. By leave of court, the defendant Shirk then filed his amended answer, with exhibits, to the complaint, substantially as follows: That the defendant has been a resident of Peru, Miami county, Indiana, for over thirty years; that he is president of the First National Bank of said city, and is a broker who purchases notes from time to time, of persons who offer them for sale at his office; that in April, 1890,
The answer contains a copy of the notes and indorsements thereon.
It further avers that the defendant, at the time he purchased said notes of said Yoder and paid him therefor, had no knowledge whatever that said notes had been obtained by said Yoder from said North or her husband as collateral security for the debt of her said husband, or that he obtained them in any other way than by a straight purchase from Susannah North, or that she claimed any ownership therein; that at the time of the purchase he believed said Yoder to be the bona fide owner of the notes, and, in the purchase, he relied exclusively on the assignments thereon made by the plaintiff, and' the possession thereof by said Abraham S. Yoder. Wherefore he says the plaintiff ought not to maintain her action against him.
The first and second errors assigned test the sufficiency of the complaint as against the appellant, and the third tests the sufficiency of appellant’s amended answer.
As these alleged errors involve the same question, they may very properly be considered together, and as the demurrer to the amended answer will, reach back to the complaint, we will examine its averments.
The section following authorizes the assignee of any such instrument, so indorsed, to recover in his own name from the person who made the same.
“The effect of these provisions is to vest in the indorsees of the instruments named therein, whether such instruments be technically negotiable by the law merchant or not, a complete legal title, as well as a right of recovery by indorsees in their own names, respectively. Whatever right remains in the assignor of an instrument thus assignable, after the holder has transferred it by an unrestricted indorsement, must of necessity be of a purely equitable character.” Moore v. Moore, 112 Ind. 149 (152).
The answer raises the question of the effect of the assignment of said notes, and the subsequent purchase of them by the appellant, who maintains that he acquired a good title to these notes for the following reasons: The appellee assigned said notes to A. S. Yoder by the written indorsement of her name on the back thereof in blank, and without any restrictive written conditions on the notes. She also delivered the possession of them to Yoder, and thus, by her own acts, clothed him with the highest indicia of title, viz., assignment and possession, and when he brought the notes to the appellant and offered them for sale, he had the most indisputable title that can accompany personal property, viz.', the legal title by indorsement and possession.
1 Wait’s Actions and Def., 598, and cases cited, recognizes the doctrine that where actual delivery accom
It appears that the appellant purchased the notes in suit in the ordinary course of business, and he looked to the evidences of title in making the investment. There is no denial in the complaint, that the appellee made the assignment and delivered the notes to Yoder. The appellant paid a valuable consideration for them, relying upon the fact that they were properly assigned and were in Yoder’s possession.
It is a familiar rule of law that where one of two equally innocent parties must suffer, the one who has put it within the power of another to impose on an innocent person must be the one to bear the loss. Stoner v. Brown, 18 Ind. 464; Moore v. Moore, supra.
In this case the appellee, by her indorsement of the notes in blank, without any restrictive conditions written thereon, and the delivery thereof to Yoder, placed it in his power to impose on thé appellant. The appellee could have protected herself by making a restrictive written indorsement on the notes, stating that they had been assigned as collateral security for the debt of her husband. This would have precluded the person in whose favor it was made from making such a transfer as would create a right of action against either the party making the indorsement or any of the antecedent parties. 1 Wait’s Actions and Def., 597.
By so doing, she would have put every person to whom Yoder attempted to sell the notes, on his guard, and prevented him from being imposed upon. She did not choose to do this, and, as between her and the appellant, she must be the one to suffer from her negligence. As
It is also contended by the appellant’s counsel, that the appellee is estopped by her own acts from asserting a claim to the notes in controversy. Section 5117, R. S. 1881, being section 6962, Burns’ Rev. 1894, contains this proviso: That a married woman shall be bound by an estoppel in pais, like any other person. Applying this principle to the case at bar, it would seem the point is well taken. If these notes had been owned by the husband of the appellee, and he had assigned them in blank and delivered them to Yoder it could scarcely be assumed by counsel for the appellee, that he would not be estopped from claiming or asserting an ownership in the notes. If, then, a married woman is to be estopped, like any other person, the appellee would be bound by her acts in this cause and estopped from claiming these notes against the appellant.
In Cupp v. Campbell, 103 Ind. 213, on page 220, cited by counsel on both sides, the court clearly lays down the doctrine of estoppel, as applied to married woman, as follows: - “While it is true that a married woman is now subject to an estoppel in-pais, like any other person, she-is not to be estopped in any manner different from any other person. Some element of fraud, misrepresentation
It will thus be seen that a married woman may be precluded from asserting a fact by previous concealment inconsistent therewith on her part, as well as by fraud or misrepresentation; she may utter no words, make no misrepresentations in language, but if, as stated, she conceals the facts, or misrepresents them by concealment, she is a wrongdoer, and is to be estopped like any other person.
Appellee avers in her complaint, that she assigned the notes in suit as collateral security for the debt of her husband, but she indorsed them in blank and delivered them to him. She concealed the facts by her indorsement in blank without restrictive conditions that she had transferred them to him as collateral security for the husband’s debt. By her unlimited indorsement of these notes, and their delivery to Yoder, she misrepresented the facts, and put it in the power of Yoder to dispose of them to an innocent person. She clothed Yoder with the highest indicia of ownership of personal property, and sent forth no words of warning by which innocent and unsuspecting persons could be put on their guard. The appellant, in his answer, says he expressly relied upon appellee’s indorsement and the possession of the notes by Yoder. It is clear that the appellee has, by her
In Moore v. Moore, supra, pp. 152, 153, the doctrine here laid down is expressed as follows: "The more modern rule upon the subject under consideration seems to be, that where the owner of things in action, although not technically negotiable, has clothed another, to whom they are delivered in the method common to all mercantile communities, with the usual apparent indicia of title, he will be estopped from setting up against a second assignee, to whom the securities have been transferred for value and without notice, that the title of the first assignee was not perfect and absolute.” Numerous authorities are cited in support of this proposition.
Pomeroy's Remedies and Remedial Rights, paragraph 161, is as follows: "In short, whenever the owner of a non-negotiable thing in action delivers the same to another person, and accompanies the delivery by an assignment thereof, absolute on its face, and this person transfers the same to a purchaser for value who relies upon the apparent ownership created by the written assignment, and has no notice of anything limiting that apparent title, the original owner is estopped from asserting as against such purchaser any equities existing between himself and his immediate assignee, and any interest or property in the security, * notwithstanding the written transfer.” For these reasons, in our opinion, the court erred in overruling the demurrer to the complaint and in sustaining the demurrer to the amended answer of the appellant.
Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.