Herman v. Pfister-Merle Intervening

Porter, J, delivered the opinion of the court. The defendant purchased from one Dupeux a lot of ground for $6000, and gave, to secure the payment, four notes; two in favour of the intervener, for the first and last instalments, of $2000 each; and two in favour of Gottchalk & Rhimer, [456] for the second instalment, one being for $1500, and the other for $500. If a petition in intervention be answered on the causiTtried'*in re-Jation to them, the right of the party to intervene canon appeai!eStÍOned These notes were endorsed by the respective payees. The plaintiffs are holders of those given for the second in-gta|men^ which were payable to Gottschalk & Reimer. They were transferred to the plaintiffs, in the usual course of trade, and the transferror, Dupeux, afterwards made an authentic act, by which he acknowledged the transaction, and set over to the transferrees all his title in the notes, together with all right of mortgage which belonged to the debt for which these notes were given. In virtue of this assignment the plaintiffs commenced an hypothecary action, and proceeded to sell the lot of ground which formed the consideration of obligations in their possession. After the sale, by which the sum of $4005 came into the sheriff’s hands, that officer refused to pay over to the plaintiffs the sum due to them, alleging that there was an in-cumbrance on the property, to the amount of $6000, which he was unable to remove, and that he was forbidden by law to raise any portion of the price except that, over and above the mortgages. Upon which, Merle, who was the payee and endorser of the notes given for the first and last instalment intervened, and by a petition asserted that he was holder of these notes, and had a right to two-thirds of the proceeds of the sale of the mortgaged property, then in the sheriff’s hands, 1 ^ 1 he plaintiffs answered this demand by a general denial, an<^ Parties went to trial on the issue thus joined. The court below sustained the claim of the interveners, and the . , plaintiffs appealed. It has been objected that the appellee’s rights can be inquired into, as he should have made opposition in the character of a third person, and not as intervener. We think this objection cannot be made here, as the plaintiffs answered the petition of intervention on the merits, and went to trial in relation to them, in the court below. Holders of ne-venteare not^e" ^é^onsidefatíoR they gave for them unless specially called on to sHeratimi^^being denied the answer. It has been also urged, that the appellee has hot proved the consideration he gave for the notes in his possession. They were made payable to him in the first instance, to facilitate their negotiation. They were negotiated, as appeal’s by endorsements made on them, and the endorser now the holder, they must be presumed to be in his hands rightfully, and because he was compelled to take them up. Holders of negotiable instruments are not required to prove the consideration they gave for them, unless specially called . . .. on to do so by that consideration being denied m the answer, This case does not come within the rule established in reíation to instruments which the holder has once negotiated, and •. ° has taken up. The endorser in the present instance never transferred them; he put his name on them, for- the accom-. modation of the maker. As to the objection made on the ground that the party who pays part of a debt for which he is bound for'another,, cannot be subrogated to the injury of the creditors’ rights for the balance remaining 'due, we do not see how it applies to this case. The original creditor is not before the court; both plaintiffs and intervener claim through him, and every objection of this kind applies as forcibly to the one as to the. other. It is therefore ordered, adjudged, and decreed, that the • judgment of the District Court be affirmed with costs.