1 Greene 179 | Iowa | 1848
Opinion by
The appellee filed his bill in chancery to foreclose a mortgage executed by appellant, to secure the payment of $351, due by a promissory note drawn by appellant and others, of which the following is a copy :—
“ $283.
Twelve months from the first of January next, we, or either of us, promise to pay Richard Ransford, or order, the*186 sum of two hundred and eighty-three dollars, with twelve per cent, interest; and, if not paid to the day, fifteen per cent, from date, for value received of him this 29th day of July, 1841:
John W. Wilkerson, [Seal.]
Philip Wilkerson, [Seal.]
J. R. Briney, Security.
INDORSEMENTS.
“ Pay the within note to Hosea W. Gray. Oct. 24,1841.
Richard Ransford.”
“ October 24, 1841. I assign the within note to Thomas Craig, for value received of him:
H. W. Gray.”
“ I assign the within to John Wolf, without recourse on me. Oct. 18, 1841:
Thomas Craig.”
“ I assign the within to J. R. Briney, without recourse.
John Wolf.”
After several continuances, demurrers, and pleas, the appellee obtained a decree of foreclosure at the May term of Cedar district court; from which decree the appellants prayed an appeal, which was allowed, and the case is thus brought to this court.
We will proceed to consider and dispose of the several points suggested by appellant’s solicitor. Appellant first alleges, that Hosea W. Gray was incompetent as a witness, for reason of interest; that he is liable to Craig as indorser.
It is true, that Gray assigned the note to Craig, but Craig assigned the note to Wolf without recourse, and Wolf assigned the same to Briney without recourse; and the note afterwards fell into the hands of Daniels, the appellee. Briney has no recourse on Wolf, nor has Wolf recourse on Craig, and Craig is not liable to any subsequent indorsee. Gray is not liable to Craig, nor to any subsequent indorsee, except Daniels.
Then Gray is liable only to Daniels, and Daniels executed a release to Gray, and thus, being divested of all liability as an indorser, Gray became a competent witness.
But it is said, by the appellant, that Gray’s testimony is illegal as to the proof of Ransford’s signature. The testimony of Gray in proof of the signatures of the indorsers was unimportant ; and however illegal any part of his testimony might be in relation to the genuineness of the signatures of the indorsers, such illegal testimony would not vitiate the proceedings on the mortgage. The suit is not founded on the note— it need not have been introduced. The mortgage is the basis of the proceedings,, and on the foreclosure thereof the introduction of the note was not necessary.
Another point, suggested by appellant, that Gray testifies that he assigned the note to Daniels, and that the copy of the indorsements shows that he assigned the note to Craig. Is the indorsement of Gray to Craig inconsistent with his testimony that he assigned the note to Daniels 1 From Gray’s testimony it may be fairly inferred that Briney transferred the note to Gray, and that Gray then transferred the note to Daniels. This second assignment of Gray may have been on a separate paper; and inasmuch as Daniels is in possession of the note, it must be presumed that Gray did assign or transfer the note to Daniels, as stated in his deposition.
It is argued by appellant’s solicitor, that John W. Wilkerson should have been admitted as a witness, after-the bill was dismissed. As to him, we think not. Wilkerson was clearly interested in reducing the amount sought to be recovered. On the' face of the note he is a maker, and liable as such, and was interested equally with the appellant in defeating any recovery on the mortgage.
The statute in force, at the date of the execution of the note, regulating interest, permitted parties to contract for the payment of interest at the rate of twenty per centum per annum.
Briney appears on the face of the note a surety, and though liable as a maker, as to the makers of the note he is a surety, and as such, when he put the note in circulation, he assumed the character of a drawer, and could re-issue the note as often as he should take it up.
“ A bill of exchange is negotiable, ad infinitum,, until it has been paid by the acceptor, and therefore, if the drawer pay it after it is due, he may, even a year and a half afterwards, indorse it to a fresh party, who may sue the acceptor thereon.” Chitty on Bills, 249.
By express legislative provision of the stamp laws in England, a bill once paid by the acceptor is no longer re-issuable; but in this country, if a promissory note be paid by the maker, and again by him put into circulation, he is liable thereon, as the maker, to any indorser into whose hand the same may fall, after the re-issuing of the same.
It is further argued, that the parties'defendants, John W. Wilkerson and said Briney, should not have been dismissed, and that the truth of their pleas should have been tried. They ought not to have been made parties. They were not parties to the mortgage, and it is not' for the appellant to complain of the dismissal of the bill as to said Briney and John W. Wilkerson.
As to the last point made by the appellant, that the .decree is rendered against lands not named in the mortgage, it appears that the lands described in the mortgage are in township eight. And such is the description of the premises in the bill; there being no averment in the.• bill that this description of the township was erroneous. In the decree there is an
We see no reason.for reversing any other part of the decree of the court below; and' the same is affirmed, and a decree will be entered accordingly.
Decree affirmed in part.