Bank of Sanborn v. France

Robinson, J. As the complaint avers, on July 9, 1914, defendant made to R. B. Beeson a promissory note to pay to the order of R. B. Beeson $800, with interest at 6 per cent, and due November 1, 1915, Beeson indorsed the note without recourse to Deree, and he, without recourse, indorsed it to the bank. The defense is a total failure of consideration. The jury found a verdict for the plaintiff, on which judgment was entered, and defendant appeals. As it appears, in July, 1914, R. B. Beeson, of Breckenridge, Minnesota, — a person skilled in land trading, — owned a half section of land under one L. B. Porter. He had a contract to sell the same to Deree, 70 who had paid $2,000. Having arranged with Deree to give up the contract, Beeson made a written contract to sell the land to France for $14,400. Five hundred dollars was paid in cash, $3,500 in a stock of .goods, and the balance in several promissory notes. To secure each note the law gave the seller a vendor’s lien on the land, and as he transferred each note he transferred to the purchaser the lien securing the same. The lien went with the note, and it was not affected by a cancelation of the land contract. The bank accepted the note, with full notice and knowledge of all the particulars, so it was not a purchaser in good faith of a negotiable promissory note, but the bank insisted and offered proof to show that by France himself it was induced to buy the note from Deree, and that the note was given to be used at the bank; and the court very properly- instructed the jury as follows: “If you find that the •defendant did not consent and acquiesce in the purchase of the note, then your verdict in this ease should be for the defendant.” It was on that instruction that the jury found a verdict against the defendant, and It does appear that there is evidence sufficient to sustain it. However, it is manifestly just that on payment of the judgment, or the note, the defendant should be subrogated to all the rights of the bank, — to all the rights of the bank as a holder of the note to enforce the lien of the same against the land, or to recover damages from B. B. Beeson. Hence the judgment will be affirmed on condition that forthwith on the filing of the remittitur, the Bank of Sanborn do file said promissory note with the clerk of the court for the benefit of defendant, with an assignment or transfer of the same, without recourse, to W. H. France, with all the rights that at any time accrued to said bank to enforce the lien of said note against the land in question, or to sue and recover the same from it. B. Beeson, if he has in any way transferred or disposed of the land. On filing such note and assignment with the clerk of the court, the judgment will be affirmed, without costs.