Trenholm v. Kee

• Decision Date: 06 September 1880
• Docket Number: CASE No. 913.
• Court: South Carolina Supreme Court
• Parties: WALKER & TRENHOLM v. KEE.

14 S.C. 142

WALKER & TRENHOLM

v.KEE.

CASE No. 913.

Supreme Court of South Carolina.

Sept. 6th, 1880.

1. The transfer of a note carries with it a mortgage given to secure its payment.

2. Promissory notes, payable to A & B, a partnership, were endorsed in blank by B with the firm name, and transferred to plaintiffs before maturity to secure advances made by plaintiffs to another firm of a different name, of which A, B & C were members; and afterwards A & B made an assignment of all their assets for the benefit of the creditors of that firm. Held, that whether A knew of the endorsement and transfer or not, the notes were the property of plaintiffs, they having had no notice of any misappropriation.

3. Circumstances sufficient to arouse the suspicions of plaintiffs would not impair their title to such paper.

Before THOMSON, J., Lancaster, June, 1879.

This was an action commenced in January, 1879, by Walker & Trenholm against A. M. Kee, and against R. M. Miller and T. G. Cureton, assignees of Stevens & Cureton, to recover from Miller and Cureton a chattel mortgage given to Stevens & Cureton, in February, 1878, to secure the balance due upon three promissory notes, two of which endorsed in blank with the firm name of Stevens & Cureton, had been transferred in June, 1877, by Ardrey, Cureton & Co., acting through T. J. Cureton (a member of both firms) to secure advances promised by plaintiffs upon the faith of these collaterals, and made a few days afterwards. Judgment was also demanded against Kee for a sale of the mortgaged property, and for balance due upon the notes. Only the assignees answered. The facts are sufficiently stated in the opinion of the court. The mortgaged property was sold by the sheriff before the trial. The Circuit judge decreed that plaintiffs were entitled to the notes transferred to them, and ordered the proceeds of the mortgaged property to be turned over to them, and gave them judgment against Kee for the balance due.Messrs. Wylie & Hough, for appellants.

Messrs. Allison & Connors, contra.

The opinion of the court was delivered by

MCIVER, A. J.

J. H. W. Stevens and T. J. Cureton were co-partners in mercantile business in the county of Lancaster, under the name and style of Stevens & Cureton, and they, together with one J. W. Ardrey, were co-partners in a mercantile business, carried on in the county of York, under the name and style of Cureton, Ardrey & Co. Stevens & Cureton entered into a written agreement with the defendant, Kee, for the sale of certain real estate, a part of the purchase money being secured by the notes hereinafter mentioned, which are the subject of controversy in this case. Cureton, having possession of these notes, which were negotiable, endorsed them in blank with the name of the payees-Stevens & Cureton-and transferred them, before maturity, to the plaintiffs to secure advances to be made by them to Cureton, Ardrey & Co. Some time after the making of these notes, the defendant, Kee, at the instance of the payees, Stevens & Cureton, executed to them a mortgage on certain personal property to secure the payment of said notes, under which the property has been sold and the proceeds of such sale is now in the hands of the sheriff awaiting the judgment of the court as to who is entitled to it. The firm of Stevens & Cureton becoming embarrassed made an assignment for the benefit of their creditors, of all their assets, to the defendants, R. M. Miller and T. G. Cureton, subsequent, however, to the transfer of the notes to the plaintiffs, and the real controversy is between the plaintiffs and these assignees as to who has the best right to the notes in question and the mortgage given to secure their payment, or rather the proceeds of the sale of the property under such mortgage. There...