Banister v. Kenton

Smith, P. J. This was a suit upon a promissory note brought before a justice of the peace. In the circuit court the plaintiff had judgment and the defendant appealed. It appears from the record that the defendant executed the note sued on to Neville who assigned it by his indorsement thereon to J. T. Banister to secure the latter against a contingent liability, i. e. becoming the security of the former on a note to the bank. While these parties were thus related in respect to the transaction, Banister died, and the plaintiff was appointed his administrator. After the death of Banister, Neville paid his note to the bank. The administrator, finding the note of Kenton amongst the assets of his decedent’s estate, brought this suit on it. The question which we are now to decide is, whether or not the defendant, who is the maker of the [465] note, can in this suit thereon against him by Banister, administrator of the assignee of the note, interpose the defense that the note of Neville to the bank on which Banister was surety has been paid off, and that, therefore, the consideration for the assignment of the note sued on has wholly failed. It is conceded that there is no question about the sufficiency of the consideration for which the note was given. When Neville paid off and discharged the note to the bank, on which Banister was his surety, this fact had the operative effect to" reinvest in the former the beneficial interest, the equitable title to the pledged note, leaving in the latter only the naked legal title. The production of the note in court, with the indorsement of Neville, the payee, thereon, constituted prima facie evidence of ownership in Banister, administrator. Ashbrook v. Letcher, 41 Mo. App. 370; Mechanics’ Bank v. Wright, 53 Mo. 153; Rubelman v. Nichol, 13 Mo. App. 584. As such holder he could sue in his own name, subject to all defenses against the real owner. Cummings v. Kohn, 12 Mo. App. 585 ; Saulsbury v. Corwin, 40 Mo. App. 373. While it is necessary to support the transfer of a promissory note that it should rest upon a sufficient consideration, the maker cannot interpose' the want of this as a defense at the suit of the indorsee against him. The reason upon which this rule is founded probably is, that such a defense would be unjust, since the maker concedes that there was a good consideration between the original parties to the note, and the attempt to defeat a just claim by setting up matter which does not tend to show either that the maker does not owe the amount, or that if he pays it to the indorsee he can be called upon to pay any part of the same debt again. This matter in no way concerns the maker of the note, and he cannot raise it to avoid its payment. Goldstein v. Winkelman, 28 Mo. App. 433 ; Saulsbury v. Corwin, 40 Mo. App. 373 ; Million b. Ohnsorg, 10 Mo. App. 432 ; [466] Burt v. Priest, 10 Mo. App. 543 ; Tiedeman on Com. Paper, sec. 154; Shane v. Lowry, 48 Ind. 205; McWilliams v. Bridges, 7 Neb. 423. The want of consideration for the transfer of a note by indorsement is a good defense only in an action by the indorsee against his immediate indorser. Tiedeman on Com. Paper, sec. 154. No error being discovered in the action of the circuit court of which complaint is made, its judgment must be affirmed. All concur.