Lewis v. Wayne

By the Court. Lumpkin, J. delivering the opinion. I shall confine my opinion in this case to the only point about which the members of the Court had the misfortune to differ. ’ The mortgage in this case, bears date 1st of June, 1849, and was made by Lewis to secure Hamilton & Hardeman, for certain funds before that time advanced, as well as to indemnify and save them harmless, “for any advances, acceptances or endorsements made thereafter by them, for and on account of said mortgagor.” During the trial, the plaintiffs tendered in evidence the original drafts, copies of which were annexed to the rule, without proving that the drawees or mortgagees had paid or advanced the money on them. Defendant objected to them on the ground that the legal presumption was that the drawer had funds in the hands of the acceptor and drawee sufficient to pay the drafts, and the plaintiffs must prove, that they were paid out of the drawees' own funds, and then defendant became indebted for money paid and advanced, and not as drawer of the bills. The Court overruled the objection and the defendant excepted. And now the only point about which we disagree is, was the Court right in ruling, that under the facts of this case, the burden of proof was shifted from the shoulders ©f the plaintiffs to those of the defendant? A majority of the Court hold, that the onus was changed, by the very tertns of the mortgage, as well as the nature of the transaction between these parties. No one doubts that ordinarily, the rule of law is, as it was sked to be applied by the defendant in this case., namely 5 [171] that if I accept for another person, the presumption is, that I have funds of his in my hands to discharge the draft, and it is incumbent upon me to show the contrary. But what is the express agreement between these parties ? Why that this mortgage which was sought to be foreclosed, was not only to secure Hamilton & Hardeman against past advances, but also to indemnify and save them harmless for any advances, acceptances, or endorsements made thereafter by them for and on account of the mortgagee. And they bring into Court and offer in evidence, paper, answering precisely to this description, acceptances made by them, for Mr. Lewis, after the first day of June, 1849. What more is there for them to do ? But says the defendant, you must show that you paid the money on these drafts out of your own funds, not out of mine! The ready response is, such was not our understanding, nor my understanding. In haec federa non veni. Our contract was that the mortgage was to cover all acceptances made for you after its date. Here are drafts drawn, accepted and taken up by me, since the mortgage was given. I claim the benefit of the bond. I am within its stipulations. You have no right to impose additional labor on me. If I had funds of yours in my hands, show it. You bargained that for all drafts and acceptances taken up by me, after the date of the mortgage, the presumption should be, that they were paid out of our funds. Still you have the right to rebut this prima facie case of liability on your park Failing to do so, I am entitled to foreclose the mortgage for the amount of these claims. Not only are the words of the mortgage in favor of the plaintiffs, but the inference to be drawn from the nature of the transaction. What did Hamilton & Hardeman look to for payment after the mortgage was given ? To funds to be furnished by Lewis ? Certainly not. The taking of the mortgage negatives this conclusion. Had they expected cotton or produce from him the mortgage would not have been taken. It was [172] required, for the very reason, that they did not expect to be supplied with funds by the drawer. They were willing to advance for him, but they exacted indemnity. {They had even advanced when the mortgage was executed. This is admitted upon its face, for it was to secure past, as well as prospective advances. But I will not spend more time upon a point which, to my mind is plain and palpable. I am of the opinion not only that the Court was right, upon every other exception, upon which1 error is assigned, and about which we all agree, but upon this also. Judgment affirmed.