Medler v. Childers

OPINION OP THE COURT. ROBERTS, C. J. In her brief, appellant discussed four propositions upon which she relies for a reversal of" the judgment. Other questions are raised by the assignment of errors, but as they are not discussed in the brief, they will be deemed to have been waived. • 1 The first contention relied upon is that the statute of limitations barred the action on the note executed by Medler, and therefore, the Childers note being collateral security for the payment of that note, payment thereof could not be enforced. Admitting that appellants construction of the relation of the parties is sound, which, under the facts need not be determined, still there is no merit in the position taken. The holder of collateral paper may sue and recover upon it of the-maker, without regard to any defenses which the pledgor has upon the debt for which the paper was pledged as security, unless the maker is deprived of some equitable-defense which he might have against the payee. Jones on Collateral Security, (3rd ed.) sec. 671. This being a true statement of the rule it necessarily follows that Childers, or his representative, having set forth no defense against the note executed by him, and claiming-none is not in a position to interpose the statute of limitation as to the principal debt, which his note is held to secure. So long as he owes the debt, represented by the note, it is immaterial to him to whom he makes payment, and he is not called upon to litigate any question as to the validity of the debt for which the note executed" by him was pledged as collateral security. 2 Appellant’s second proposition, as we understand it, is that the court erred in holding that the transfer of the note' carried with it the mortgage securing its payment. There was evidence from which the court might have found that the bill of sale was transferred to Wilkerson at the same time that the note was endorsed over. However, the rule is, as stated in Coolebrooke on Collateral Securities, page 260. “The transfer of a negotiable promissory note, by endorsement and delivery merely, where endorsed in blank or payable to bearer, the payment of which is secured by a mortgage or deed of trust, carries with it, in equity, the mortgage or deed of trust securities. The endorsee of the promissory note is entitled to the benefits of such mortgage, whether an assignment of the same is made or not.” Daniels, in his work on Negotiable Instruments, vol. 1. page 558, saj^s: “The assignment of any particular claim is considered an equitable assignment of all securities held by the assignor to assure it.” See also Jones on Chattel Mortgages, p. 449. So that even though it be held that Medler did not transfer the bill of sale to Wilkerson, under the rule above stated, Wilkerson was entitled to the benefit of all the securities held by Medler to assure the payment of the note. The third point discussed is that there was joined in the complaint inconsistent causes of action. However, no advantage was sought to be taken, in the1 lower court, of such fact, if it existed, and it is too late to raise it for the first time on appeal. 3 It is lastly urged that the decree rendered in the lower-court is inconsistent, but appellant has failed to point out in his brief any injury suffered, by reason of such inconsistence, if it exists. Finding no error in the record, warranting a reversal, the judgment of the lower court is affirmed, and it is so ordered.