Haywood v. Seeber
| Decision Date | 03 October 1883 |
| Parties | HAYWOOD AND ANOTHER v. SEEBER AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Clinton circuit court.
Action to foreclose a mortgage securing a promissory note. The plaintiffs appeal from a judgment of the circuit court overruling a demurrer to defendant's answer. The pleadings are set out in the opinion.Aylett R. Cotton and E. C. Walsh, for appellants.
A. P. Barker and A. L. Schuyler, for appellees.
1. The petition shows that plaintiffs are the indorsers of the negotiable promissory note, and the assignees of the mortgage securing it, which are the foundation of this action, and that the transfers were made after the maturity of the note. The answer alleges that defendants made payment in full of the note to the payee before they had notice of the transfer thereof to plaintiffs. The plaintiffs demurred to the answer on the ground that “it is not therein alleged that the note and mortgage sued on, or any part thereof, had been paid prior to the time said note was indorsed and transferred to the plaintiffs, and for the reason that the plaintiffs, as the indorsers of said note after it was due, were not by the law required to notify the defendants, or either of them, of said indorsement in order to prevent payment to the indorser.”
2. The demurrer, which was overruled by the court below, presents this question: Is payment to the payee by the maker, without notice of the transfer, made after maturity, a defense to the action by the indorser? This is the only question in the case. It is stated in different language by counsel of the respective parties, which substantially presents the same thought. Code, § 2546, is in the following language: “In the case of the assignment of a thing in action, the action by the assignee shall be without prejudice to any counter-claim, defense, or cause of action, whether matured or not, if matured when pleaded, existing in favor of the defendant and against the assignor, before notice of the assignment; but this section shall not apply to negotiable instruments transferred in good faith, and upon valuable consideration, before due.” Code, § 2086, provides that “when, by the terms of an instrument, its assignment is prohibited, an assignment of it shall, nevertheless, be valid; but the maker may avail himself of any defense or counterclaim against the assignee which he may have against any assignor thereof, before suit is commenced thereon.” The following section extends the provision to open accounts, and prescribes that they may be assigned. The section first quoted is applicable to the case before us, as it contemplates negotiable paper and other instruments assignable at law. Sections 2086 and 2087 provide that all instruments and accounts may be assigned. Under section 2546, defenses may be pleaded to actions upon choses in action, except negotiable paper transferred before maturity, which existed before notice of the assignment. The...
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Plattsmouth State Bank v. Redding, 29030.
...notice of a transfer of the note after maturity, is a valid defense to an action by the indorsee.” Haywood & Son v. Seeber, 61 Iowa, 574, 16 N. W. 727. See Consterdine v. Moore, 65 Neb. 296, 91 N. W. 399, 96 N. W. 1021, 101 Am. St. Rep. 620;Swan v. Craig, 73 Neb. 182, 102 N. W. 471. While o......
- Haywood v. Seeber