Dean v. De Lezardi

Mr. Justice Fisher delivered the opinion of the court. The defendants in error, assignees of a certain note, transferred to them by Nicholas Berthoud, filed their bill on the chancery side of the circuit court of Holmes county, alleging that on the 15th day of March, 1838, Dean and Oliphant executed to Ber-thoud a.certain mortgage on two lots in the town of Lexington, for the purpose of securing the payment of a note bearing even date with the mortgage for §1,958.22. The bill avers a transfer of the note to the complainants. The mortgagors make no defence to the bill, and the controversy is between the complainants and S. E. Nye, who purchased part of the premises at sheriff’s sale, under a judgment rendered against Dean and Oliphant, after the mortgage had been recorded. His defence is that he is only chargeable with notice of the note specified in the mortgage, which is dated the 15th of March, 1838, whereas the one offered in evidence is dated the 24th of the same month. The mortgagees explain the mistake in the date by showing that the note was not delivered till the 24th of March, 1838, at which time it was dated. After the mortgage was recorded, it was notice to all the world of the debt therein specified, as well as the lien, and a subsequent purchaser would be chargeable with notice of both the lien and debt secured. The date was only part of the description of the note, not necessary to its validity, and it might, therefore, be explained, and this is done by the amended bill of complainants. A question might be made, whether any one but the makers of the note could insist on its production at the trial. They have admitted the debt by the mortgage, and this is suf [427] ficient to charge third persons with notice of the debt secured. The only reason why the makers could insist on the production of the note, is that it may have been indorsed, and a third person may at a future period present it for payment. The decree, however, will have to be reversed, as it does not provide that the sale shall be on credit according to the statute. Decree reversed, and cause remanded.