Draper v. Saxton

• Decision Date: 30 September 1875
• Parties: John L. Draper v. John Saxton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 427

John L. Draper v. John Saxton

Supreme Court of Massachusetts

September 30, 1875

[Syllabus Material]

Hampshire Tort for the conversion of a quantity of tobacco. Trial in the Superior Court, before Allen J., without a jury, who allowed a bill of exceptions in substance as follows:

The tobacco was grown by James H. Saxton in 1872, and on November 24, 1873, he conveyed it by a mortgage, recorded the same day, together with other articles, the produce of his farm in 1873, to John H. Stebbins, to secure his note of $ 2000 dated September 21, 1872, payable to Stebbins or order, on demand. Stebbins assigned the mortgage to the plaintiff, by an instrument bearing date December 10, 1873, recorded on April 20, 1874, and also indorsed the note to him. The plaintiff proved a notice for foreclosure of said mortgage, given by him to James H. Saxton on June 18, 1874, and duly recorded and a demand on said James H. of the tobacco; and a refusal by him, in September, 1874.

The defendant offered evidence tending to prove that the $ 2000 note was given to secure Stebbins against his liabilities for James H. Saxton; that when the note was given he was liable for about $ 1000 on notes which he had signed or indorsed for the accommodation of said James H., and the note was made for $ 2000 to cover future liabilities, and was secured, when given, by the mortgage of the tobacco in question; that there was no other consideration for the note or mortgage; that when the latter mortgage was given, Stebbins was liable for said James H. on two notes, one for about $ 500 and the other for about $ 700, to which James H. and the defendant were parties; that on December 1, 1873, after the giving of the mortgage and before the assignment of it to the plaintiff these notes, being overdue, were taken up, in part by said James H., and in part by a note to the Crocker Bank for $ 900, signed by Stebbins and the defendant; that one half of that note was paid by Stebbins on March 3, 1874, and the other half by the defendant, and that Stebbins made no other payments on account of his said liabilities for James H that when the defendant became liable with Stebbins for James H., Stebbins promised to give him security on the mortgaged tobacco, and that after March 1, 1874, he agreed to sell it, or let the defendant sell it to apply on the payment made by the defendant on the $ 900 note; that the mortgaged property remained in the possession of the mortgagor, and he fed out or sold a part of it, being the produce of 1873; that about April 10, 1874, he put the tobacco into the possession of the defendant to secure him for what he had paid as aforesaid, and it was so in his possession when the plaintiff's demand was made. The defendant claimed to hold the tobacco as security for what he had paid on said note to the Crocker Bank.

It appeared that the assignment to the plaintiff was to secure a note for $ 500, given by Stebbins to the plaintiff of the same date with the assignment, the consideration of which was money lent by the plaintiff to Stebbins, and that the note had not been paid by Stebbins.

There was no evidence of the time when the assignment was made to the plaintiff other than what appeared on the papers. There was no evidence that the plaintiff had notice that the $ 2000 note was held by Stebbins as collateral; and no evidence that either the defendant or the mortgagor had notice of the assignment to the plaintiff until after the tobacco had been put into the defendant's possession.

The defendant contended, on the foregoing evidence, that the mortgage was void as an assignment of property held as collateral security, before the debt was due, and asked the judge to rule that, if the facts which the evidence tended to prove were...