Laster v. Stewart

• Decision Date: 31 March 1892
• Citation: 89 Ga. 181,15 S.E. 42
• Parties: Laster v. Stewart et al.
• Court: Georgia Supreme Court

15 S.E. 42

89 Ga. 181

Laster

v.Stewart et al.

Supreme Court of Georgia.

March 31, 1892.

Note—Rights of Bona Fide Holder — Chattel Mortgage — Consideration — Foreclosure — Sufficiency of Evidence.

1. One to whom a negotiable promissory note, executed by a married woman, together with a mortgage upon her property, made to secure the same, is transferred before maturity to secure a definite part of a bona tide debt, is not affected by the fact that the note and mortgage were given originally to pay or secure a debt of the maker's husband; the transferee having acquired his title without notice of this infirmity. His protection, however, does not extend beyond the amount for which the note and mortgage were pledged to him. He can foreclose the mortgage for that amount as against a defense which affects the payee of the note, but not the transferee. Hecan foreclose it for the whole amount due on the note only in case no defense good against the payee is established.

2. The verdict for plaintiffs, as amended by the order of the judge, requiring a portion of the recovery to be written off, was amply sustained by the evidence; and, if there were any errors in the charge of the court, they resulted in no injury to the defendant.

(Syllabus by the Court.)

Error from superior court, Henry county; J. S. Boynton, Judge.

Action by Thomas D. Stewart & Co. against Lizzie Laster to foreclose a chattel mortgage. On the judgment, defendant brings error. Affirmed.

The following is the substance of the official report:

A mortgage on personalty from Mrs. Laster to Norman & Son was foreclosed by Stewart & Co. as transferees, and Mrs. Laster interposed her affidavit of illegality on the following grounds: (1) The mortgage was made to secure the payment of a debt already contracted and owing by her husband, J. P. Laster, to Norman & Son; and, at the time the mortgage was given, she did not owe the mortgagees anything whatever, and does not now owe anything upon the mortgage. (2) At the time of the execution of the mortgage, Norman & Son were to let her husband have $150; which amount was never received by her husband, and therefore the consideration of the mortgage has failed in that sum, and said sum is not now due by her to the plaintiffs. (3) The mortgage was deposited with Stewart & Co. for the purpose of securing the payment of the sum of $134.54, and Stewart & Co. have no right to enforce the mortgage for more than that amount. (4) The mortgage was transferred to Stewart & Co. to secure the payment of her husband's debt with Stewart & Co., which debt has been fully paid off and discharged; and Stewart & Co. are not innocent purchasers without notice. The sum named in the mortgage, to secure which it was made, is $250, with interest at 8 per cent, after maturity and 10 per cent, attorneys' fees. It is dated November 21, 1887, and due October 1st after date. On it is a receipt for $23, dated November 30, 1887. It was foreclosed for $227 principal, $3.75 interest to date of foreclosure, December 19, 1888, and $23 attorneys' fees, besides further interest at 8 per cent. It also bears an entry of transfer to Stewart & Co., May 21, 1888, signed by Norman & Son. On April 23, 1891, the jury found for the plaintiffs $227 principal and $45.40 interest. On motion for a new trial the court denied the same on condition that the plaintiffs write off $74.93 from the principal, and the interest of said sum from date of maturity. This condition having been complied with, the defendant excepted to the overruling of the motion, alleging that the errors therein complained of could not be met by writing off any part of the verdict and judgment, but if so the verdict should have been written off to $59. The grounds' of the motion, besides those alleging that the verdict was contrary to law and evidence, are that the court erred in charging the jury as follows: "If Mrs. Laster made an arrangement to secure credit with W. P. Norman & Son, and gave her note for the payment of the goods purchased from them on her credit, she would be liable therefor. If she gave her note to W. P. Norman & Son, and deposited it with them, or permitted her husband to buy goods on the faith of her note deposited previously to purchase the goods, then if would be an original undertaking on her part for the entire debt, and she would be liable therefor. If she made an arrangement to buy goods, or if she deposited her note for the purpose of purchasing goods, and purchased them herself or allowed her husband to purchase them, upon the faith of the note that was deposited to secure the payment of such purchase, she would be liable thereon. But if J. P. Laster, her husband, negotiated for credit with W. P. Norman & Son, and the note was given by Mrs. Laster to pay her husband's debt, then it would be void as against her in the hands of W. P. Norman & Son. If she was the original undertaker, if the goods were purchased by her upon a note deposited by her, with the view of having the goods purchased by herself, or by authorizing her husband to purchase them for her, and she gave a writing in conformity or in renewal of such a note, she would beliable." The errors assigned on the foregoing instructions are that the evidence failed to show that the goods were sold on her credit; that the evidence showed that the two notes, the foundation of the note sued on, were given for two others given in 1886 and 1887, and both notes given on the same day, February 18, 1887;...