Moses v. Grainger

• Decision Date: 20 October 1900
• Citation: 58 S.W. 1067
• Parties: MOSES v. GRAINGER et al.
• Court: Tennessee Supreme Court

58 S.W. 1067

MOSES v. GRAINGER et al.

Supreme Court of Tennessee.

October 20, 1900.

Appeal from chancery court, Knox county; George W. Henderson, Special Chancellor.

Action by Charles H. Moses, as executor of the estate of Mary P. Moses, deceased, against Fannie M. Grainger and others, in which S. C. Jarnigan asked a decree for the amount of a certain note; and from a decree of the court of chancery appeals reversing a decree of the chancellor, he appeals. Affirmed.

Green & Shields, for complainant. Chas. T. Cates, Jr., for appellant.

BEARD, J.

On the 11th May, 1898, Frank A. Moses executed to the Central Savings Bank of Knoxville his promissory note for $301.10, payable 90 days after date "to the order of the payee," and pledged as collateral to secure it the note which is the subject of controversy in this case. The pledge of the collateral, as stipulated in the original paper, is in these words: "Having deposited with said bank as collateral security for the payment of this note, with authority to sell the same at public or private sale on the nonperformance of this promise, and without notice, one note for $500, signed by F. A. Moses, and indorsed by Chas. H. Moses, Henry L. Moses, and Mary P. Moses." The $500 note thus pledged was dated 10th December, 1892, and matured six months after date. Long after maturity of the original note, to wit, in February, 1899, and after, by various payments made upon it by its maker, there was left due on it, in principal and interest, only $86.50, the Central Savings Bank passed into the hands of a receiver, who sold a considerable part of its assets, including this note, to Galbraith & Maloney, of Knoxville. With this note was also delivered to them the collateral in question. Having received these assets, on the 7th of March, 1899, these transferees posted the following notice: "On Thursday, March 9, 1899, at 11 o'clock a. m., we will sell to the highest bidder, for cash, in front of the court-house door in Knoxville, certain collaterals attached to various notes assigned to us by the Central Savings Bank, which collaterals will be produced at the sale. This March 7, 1899. [Signed] Galbraith & Maloney." Pursuant to this notice, and without any demand upon the maker of the original note, these parties undertook to sell the collateral in question, when, S. C. Jarnigan having bid for it the sum of $87.50, it was delivered to him, as the purchaser. Thereupon, claiming to be its owner under this purchase, he filed his petition in this cause, instituted to wind up the estate of Mary P. Moses, now deceased, one of the indorsers of this collateral, asking that he be given a decree for the face value of the note, and interest upon it. The chancellor allowed a decree for the sum of $87.50, the amount paid by him. From this decree he prayed an appeal, and the court of chancery appeals reversed the chancellor and dismissed his petition. From the finding of this latter court, he has appealed.

For the purpose of this case, it may be conceded that the power of sale given in this contract of pledge was not a personal trust to be exercised by the payee alone, but under the terms, "to the order of," would pass to an assignee, as in a mortgage, where the authority is given to the mortgagee or "assigns." 2 Ping. Chat. Mortg. § 1320. But this concession will not avail the petitioner, Jarnigan; for there is an objection we think fatal to this claim. As has been seen, the original note was nearly four years past maturity at the...