Nott v. Watson

Mebrjck, C. J. This suit was brought (o injoin the execution of a judgment rendered against the plaintiff and in favor of McKee, Bulltley & Co., upon a note given to one Thomas Gamblin, now an absentee, as a part of the price of a tract of land. Gamblin sold the land with a full warranty. It proved, however, to be subject to a certain mortgage, which the plaintiff was apprehensive he would be obliged to pay, and on which suit had been commenced against him, and he has brought this suit to require the holders of the judgment to give security against such incumbrance before proceeding further with the execution issued on the judgment. In July, 1849, six months previous to the maturity of the note in question, Thomas Gamblin indorsed the same and placed it in the possession of Messrs. Iler & Kline, 1he agents of McKee, Bulltley & Co., to secure them the amount of an acceptance of $1000, and such further advances as they might make, and to account to Gamblin for the balance. He took from Iler & Kline their written agreement to hold the note for these purposes. On the 26th day of November, Gamblin transferred the receipt of Iler & Kline to F. L. Scogin. McKee, Bulltley & Co. having been paid the amount due them, out of the proceeds of the judgment, the question presented to us is: whether Scogin shall be considered as having acquired the balance due upon the note or judgment out of the regular course of business, and whether the note in his hands is subject (o the equities between the plaintiff and Gamblin'! It is not unusual to indorse and deliver commercial paper as collateral security. By the indorsement and delivery of the note to Iler & Kline, the agents of McKee, Bulltley & Co., the legal title to it passed to Bulltley & Co. By the subsequent transfer-of the receipt to Scogin, Gamblin parted with his equitable interest also in the note before its maturity. There was, therefore, nothing left at the maturity of the note upon which the plaintiff’s equities could attach, and it has not been shown that Iler & Kline, or McKee, Bulltley & Co., or Scogin had notice of such equities at the lime they became the owners of the note. The paraph “ ne mrieiur,” does not convey such notice. Judgment affirmed. Spoefokd, J., recused.