Fassler v. Streit
| Citation | 139 N.W. 628,92 Neb. 786 |
| Decision Date | 16 January 1913 |
| Docket Number | 16,872 |
| Parties | PHILIP FASSLER, APPELLANT, v. RUDOLPH STREIT ET AL., APPELLEES |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Webster county: HARRY S. DUNGAN JUDGE. Reversed.
REVERSED.
Bernard McNeny, for appellant.
L. H Blackledge and E. U. Overman, contra.
This is a suit to foreclose a mortgage for $ 1,300 on a quarter-section of land in Webster county. The note secured was executed February 16, 1904, and by its terms matured March 1, 1909. A payment of $ 300 was made June 13, 1906. Andrew P. Johnson was payee, and Rudolph Streit and Amelia Streit were makers and mortgagors. Philip Fassler is plaintiff, and pleads that the note was assigned in good faith by the payee to V. S. Hall, June 17, 1907, and by the latter to plaintiff, November 7, 1907, and that he is an innocent holder without notice of any defense. Mortgagors are defendants. June Paulson, Martin Paulson, Carrie Paulson, Nels Paulson, Mary Paulson and Lena Peterson are joined as defendants, and it is alleged that they claim some interest in the mortgaged premises, but that it is inferior to plaintiff's lien.
In his answer Rudolph Streit admitted the execution of the note and mortgage and the payment of $ 300, as pleaded by plaintiff, but denied other allegations of the petition, including the bona fides of the transfers. He also pleaded that the note and mortgage were given by him in part payment of the purchase price of the mortgaged land; that he purchased it from Johnson, who executed and delivered to him a warranty deed, but that thereafter, and before any actual or pretended transfer of the mortgage, the Paulsons and Lena Peterson set up a claim of title adverse to that of Johnson and his grantee, and in the district court for Webster county an action was instituted wherein the Paulsons were plaintiffs and Lena Peterson and the Streits were defendants; that, upon Streit's answer and cross-petition therein, Johnson and Hall were made parties, and the latter, after having been served with summons, defaulted; that upon issues joined and tried in the former suit it was decreed that the Paulsons had an interest in the mortgaged land adverse to that of Johnson and his grantee, and that collection of the note and enforcement of the mortgage be enjoined pending an accounting between Johnson and his grantee as to the damages on account of the covenants of seizin and warranty in Johnson's deed. It is further alleged in Streit's answer herein that the decree in the former suit was rendered September 24, 1909, and has not become final as to the parties affected by it; that the time for appeal therefrom has not expired; that he is proceeding to perfect an appeal therefrom to the supreme court. In the answer it is also alleged that Hall and plaintiff herein, before the making of the assignments pleaded by the latter, knew of the adverse claims of the Paulsons and of the pendency of their action, and of the liability of Johnson to his grantee, and of the latter's right and intention to recoup his loss out of the mortgage indebtedness, in the event it should be finally adjudged that Paulsons had an interest in the mortgaged land; that plaintiff knew Johnson to be a non-resident of the state. In a reply allegations of new matter in the answer were denied. For the purposes of this appeal reference to the pleadings of other parties seems to be unnecessary. Upon a trial of the foreclosure suit, the petition was dismissed April 16, 1910, and plaintiff has appealed.
Plaintiff argues there is error in the dismissal of his suit to foreclose the mortgage, because the petition, the evidence, and the findings of the trial court show, as he asserts, that he is a bona fide holder of the note for value before maturity, without notice of defenses thereto, and that, therefore, any defense pleaded is unavailing. Do the assignments pleaded amount to commercial indorsements protecting plaintiff as a bona fide holder? There is no indorsement of a transfer of any kind on the note. It is payable to "Andrew P. Johnson or order," and his assignment appears on the back of the mortgage in the following form:
What is relied upon by plaintiff as an indorsement to him was written with a pencil on the back of a deposit slip of the Exchange Bank of Bladen, Nebraska. At the time, Johnson was in California, and the note was in Hall's bank at Bladen. The writing is as follows:
Referring to the transfers of the note, the trial court found that a formal assignment was made by payee on the back of the mortgage; that the note was not attached to the mortgage and assignment; that the note and mortgage were kept together, but were not physically united or attached to each other; that payee made no indorsement on the note; that no assignment of the mortgage was made by Hall to Fassler; that the note was not indorsed by Hall, but that on a separate piece of paper he made a notation of the sale of the note and mortgage to Fassler, and signed the same; that the notation was placed with the note and mortgage, but not physically attached thereto, and the three instruments were delivered to plaintiff; that, there being no indorsement on the note or on a paper attached thereto, it is subject to any defense the makers may have against the payee.
Notwithstanding these findings, plaintiff insists he is a holder in due course within the meaning of that part of the negotiable instruments law which declares: "The indorsement must be written on the instrument itself, or upon a paper attached thereto." Comp. St. 1905, ch. 41, sec. 31. Plaintiff insists that the papers were attached, and that he is entitled to protection as an innocent holder, since the trial court, in addition to the findings already mentioned, found that Hall purchased the note and mortgage June 18, 1907, for a good and valuable consideration, without notice of any defense, and that plaintiff likewise purchased them in November, 1907. If plaintiff is correct in asserting that the papers were attached, within the meaning of the negotiable instruments law, and if the language quoted changed the law merchant, questions not decided, the point, as argued, is nevertheless not well taken, because that statute is inapplicable. It went into effect, according to its terms, August 1, 1905. Comp. St. 1905, ch. 41. sec. 198. The note was executed and delivered at an earlier date, namely, February 16, 1904. The act declares. "The provisions of this chapter do not apply to negotiable instruments made and delivered prior to the taking effect hereof." Comp. St. 1905, ch. 41, sec. 193. The rights of the parties must therefore be determined according to the law in force prior to the enactment of the negotiable instruments statute. Dorsey v. Wellman, 85 Neb. 262, 122 N.W. 989.
Independently of the statute, were the assignments commercial indorsements protecting plaintiff from the defenses pleaded? It has been distinctly held that an assignment indorsed on the back of a mortgage, though it may operate as an equitable transfer of the note, does not cut off defenses which would be available to the maker in a suit by the original payee. Doll v. Hollenbeck, 19 Neb. 639, 28 N.W. 286; Colby v. Parker, 34 Neb. 510, 52 N.W. 693; Gaylord v. Nebraska Savings & Exchange Bank, 54 Neb. 104, 74 N.W. 415; Sackett v. Montgomery, 57 Neb. 424, 77 N.W. 1083; Nebraska Nat. Bank v. Pennock, 55 Neb. 188, 75 N.W. 554. In the case last cited it was held: "A transfer by an instrument separate from, and independent of, the note, while it operated to convey the title, did not cut off equities or defenses, as would have been done had this negotiable note been regularly indorsed."
Plaintiff contends, however, that the assignments and the note were kept together, that they were attached, and that they should not be considered as separate instruments. It is true Hall testified, in reference to his assignment on the deposit slip, that it "was made out and 'attached' to the paper at the time of the purchase of the mortgage;" but, when all the testimony is considered, it is apparent he used that word in the sense that, when the papers were kept together, he understood they were "attached." This seems to be the proper interpretation of his testimony, when other evidence shows the trial court properly found that the deposit slip was not physically attached to the note or mortgage. It seems equally clear that neither the deposit slip showing Hall's transfer nor the mortgage on which Johnson's assignment was indorsed can be considered an allonge, since it appears that there was nothing on the back of the note except a credit of $ 300, and that therefore there was no necessity for an additional slip for indorsements.
It is further argued that the dismissal of the foreclosure suit is erroneous, because there is no competent evidence that Streit was evicted, or that he surrendered possession of the land purchased by him from the mortgagee, or that the consideration for the note failed. Plaintiff's argument on this point has not been successfully refuted. It is not even asserted that Streit was evicted or that he surrendered possession. The only proof that his title failed is found in the decree in the suit by the Paulsons to quiet their title. This decree, when received in...
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