Johnson v. Gennison

JjKBAxm, J. The plaintiff alleges that he is the holder and owner of two mortgage notes, hereto annexed, and hereof made a part, due by JohnH. Gennison, amounting to $1,683 33, with six per cent, interest* from 16th August, 1860, until maturity, and eight per cent, therefrom until paid. That the payment of said notes is secured by the vendor’s; lien and special mortgage on the property described in the notarial act of sale hereto annexed and hereof made á part. The defendant excepted to the petition,, on the grounds that it sets; forth no cause of action, nor are the allegations set forth with that degree of certainty which is necessary for the basis of a judgment, nor such that this defendant can, with safety, answer thereto. The Court overruled the exception; we believe this decision is correct. The notes sued on and the act of mortgage being annexed to and made a. part of the petition, the defendant had ample notice of the cause of action. 5 Rob. 123. The defendant, answering on the merits, filed a general denial; admitted the execution of the notes sued upon; denied that plaintiff had any right or title in the same; alleged that the notes had been taken up with funds furnished' by respondent,, by one Luneschloss, who acted as a banker for respondent, and had all his papers, and with whom he left his money as on deposit; that these notes thus taken up at their maturity were in said Luneschloss’ clerk’s possession when he left suddenly this city without returning to this respondent said notes, etc. [276] Judgment being rendered below in favor of plaintiff, tlie defendant took this appeal. On trial of the ease below, plaintiff offered in evidence the two notes and act of mortgage annexed to the petition. The defendant objected to the admission of said documents, on the ground that neither of the notes, nor the act of mortgage, were at all described in the petition; and that, being mortgage notes given to the curator of the vacant estate, the plaintiff must show a transfer by judicial sale or by act of partition to him. The Court overruled the objection and admitted the evidence. We are of opinion that the Court did not err. The signature of the defendant to the notes sued on is admitted; the notes are payable to his own order, and by himself endorsed in blank. This endorsement is proven by the act of mortgage, and the plaintiff has shown clearly that he is the holder of said notes, which are payable to bearer under the blank endorsement, We have carefully examined the evidence, and we are of the opinion that the defendant has failed to establish his defence. Judgment affirmed, with costs. Hyman, C. J., and Howell, J., recused.