31 F. 858 | U.S. Cir. Ct. | 1887
On the eighteenth day of January, 1885, the defendants executed their two negotiable promissory notes,—one for $2,000, payable to Mark P. Hillyer on the first day of May of the same year; and the other for $3,000, payable to the same person on the eighteenth day of January, 1891. Both notes were executed at Thomson, Illinois,
After setting up defenses which would be good against the payee, the answer avers that the notes and mortgage were executed in Illinois, (where the notes were made payable,) with reference to the laws of that state, by which an assignee of such a mortgage could acquire no greater right, against tho maker of the notes and mortgage, than the payee and mortgagee had; and that, in this suit to foreclose the mortgage, the defendants are entitled to all the defenses which they might plead i f the mortgagee were complainant. The answer is excepted to as insufficient.
It is not claimed that there is a statute in Illinois under which tho defendants may assert against the complainant, a,s the assignee and bona fide holder of the notes, tho same equities or defenses which he would bo entitled to against the payee. It has boon held by the supreme court of Illinois, not under any local statute, but as a question of general or commercial law, that if a mortgage is given to secure a negotiable note, and both the noto and mortgage are transferred before maturity to a bona fide indorsee, he holds the mortgage subject to all equities between 1he original parties. But tho supreme court of the United States has established a different rule for the federal courts. That court has held that whore a negotiable note, secured by a mortgage, has been transferred to a bona fide holder for value before maturity, and a bill is filed to foreclose the mortgage, no other or further defenses are allowed, as against the mortgage, than -would be allowed were the action brought in a court of law upon the note; that the maker bound himself to pay the note at maturity to any bona fide indorsee, without reference to any defenses to which it might be liable in the hands of the payee; and that, in proportion as the remedy is denied to the indorsee to enforce the security, his rights are violated and set at naught. Carpenter v. Longan, 16 Wall. 271; Kenicott v. Supervisors, Id. 452; Sawyer v. Prickett, 19 Wall. 146.
It is urged, however, that because the second note will not, by its terms, become due until 1891, before which time its payment cannot be enforced, either at law or in equity, without also declaring on the covenant in the mortgage, which is not negotiable, that therefore the makers are entitled to the defense set up in their answer. This assumption is Based upon a misconception of what the makers agreed to do by the execution of the notes, as well as of the relation which exists between the notes and the mortgage. The contract was that the makers would pay tho notes at maturity to any bona fide indorsee, without reference to defenses to which they might be liable in the hands of the payee; and the mortgage, with all its covenants, was executed to secure the fulfillment of that contract. The covenant in question added to the commercial
The plaintiff bought the notes in good faith, before maturity, on the faith of the security, including the covenant in question; and it would be inequitable and unjust to hold that it was the intention of the makers and the payee that this covenant should not be enforced without destroying the negotiable character of the notes. The exceptions to the answer are sustained.