convey the legal title, as the blank indorsement already on it was effectual for that purpose. 3. The legal title and right of action being wholly in Curtis, the Court erred in permitting Dennis to be joined as a coplaintiff. But it was an error which has wrought no substantial injury to the defendants. Nevertheless, in order to preserve a proper consistency in the record, we deem it better to remand the cause for further proceedings. It is therefore ordered that the judgment be reversed and the cause remanded, with an order to the Court below to vacate the order allowing Dennis to be joined as a co-plaintiff, and to enter a judgment on the findings in favor of the plaintiff Curtis. By Indorsement. FRENCH v. TURNER. 15 Indiana, 59. 1860. The first count states in substance, that on November 6, 1852, one John Bodle executed and delivered to Abel C. Pepper, a mortgage on certain land, therein described, to secure the payment of $1,100, evidenced by ten promissory notes of that date, each for $110; one payable in a year from date, and one maturing each year thereafter until they all become due, with interest payable annually. That in September, 1854, Pepper assigned and transferred the mortgage and notes, by indorsement on the mortgage, to the defendant, Turner. That Turner, in January, 1858, for value received, transferred the mortgage and notes to the plaintiff, by indorsement in writing on the mortgage. The mortgage and notes, together with the assignment, are set out. The assignment from Turner to the plaintiff, on the mortgage, is as follows, viz.: "For value received, I hereby assign the within mortgage and notes, therein described, to John J. French. "January 2, 1858. (Signed) MOSES TURNER." It is averred that the note which became due on November 6, 1858, and the interest on the other not due, remain due and unpaid. That, for the notes which matured before November 6, 1858, he foreclosed the mortgage and the mortgaged premises were sold for $600 being fifty dollars less than the amount of the judgment, interest and cost. That Bodle, at the time of the execution of the notes and mortgage, had no property subject to the execution except the mortgaged premises, nor did he have at the time of the maturity of any of the notes. That he is still wholly and notoriously insolvent, having no property subject to execution, and that an action against him would be unavailing, wherefore, etc. The second count alleges, that the defendant, professing to be the holder of the ten promissory notes (described in the first count), secured by the mortgage on, etc., for value received, sold the said ten promissory notes to the plaintiff, by indorsement on the mortgage (as in the first count); and that before the said assignment, the defendant received full payment and satisfaction of the first of said series of promissory notes, to-wit: the one payable on November 6, 1853, and all interest thereon, from the said Bodle, which interest at the time of the assignment amounted to $30, making, of principal and interest on the note, at the time of the assignment, $140, which the defendant refuses to pay. The third count alleges, that "the defendant professing to be the holder of the ten promissory notes and mortgage, and that the payment of the notes was secured by the mortgage, induced the plaintiff to purchase the same for a valuable consideration, fully equal to the principal sum mentioned in the notes and interest accrued thereon; and thereupon the defendant, in pursuance of said sale, by an instrument in writing indorsed on the said mortgage, assigned the notes and mortgage to the plaintiff. That at the same time the defendant, by an instrument in writing, executed contemporaneously with the assignment, covenanted and agreed with the plaintiff that the notes were secured by mortgage. And in consideration that the plaintiff would receive the notes without indorsement, the defendant then and there agreed by parol, and undertook and promised the plaintiff, that if he could not collect the same from Bodle, the defendant would pay the plaintiff the sum of money mentioned in the notes. The foreclosure of the mortgage; the insufficiency of the mortgaged premises to pay the debt; the insolvency of Bodle, and that the note due November 6, 1858, with the interest thereon, remains due and unpaid, are averred, substantially as in the first count. PER CURIAM.-The first count is evidently based upon the supposition that the defendant is liable as an indorser of the notes. This, however, is not the case. In order to render him thus liable, the indorsement of the notes must have been made "thereon" (1 R. S., 1852, p. 378), or perhaps, "on another paper annexed thereto (called in French Allonge), which is sometimes necessary when there are many successive indorsements to be made." (Story on Bills, § 204. See also Rex v. Bigg, 1 Strange, 18; Arnot v. Symonds, 85 Pa. St., 99; Moxon v. Pulling, 4 Camp., 50; Young v. Glover, 3 Jurist, (N. S.), 637; Badgley v. Votrain, 68 Ill., 25.) The indorsement in question, made upon the mortgage, refers to the notes as being therein described, and is not upon the notes, or upon any paper attached to them. Such an assignment could not operate to transfer the legal title to the notes. It would convey an equitable title, authorizing the assignee, under our code, to sue thereon in his own name, but it does not place the assignor in the condition of a legal indorser. By such an assignment, the assignor does not warrant the solvency of the maker of the notes. It is no more effectual for that purpose than a parol assignment would be, an assignment made by the delivery of the notes. The case is analogous to the transfer of a bill payable to bearer, by delivery. "If it is payable to the bearer, then it may be transferred by mere delivery. But, although it may be thus transferred by mere delivery, there is nothing in the law which prevents the payee of a bill, payable to himself or bearer, from transferring it, if he chooses, by indorsement. In such a case, he will incur the ordinary liability of an indorser, from which, in the case of a mere transfer by delivery, he is ordinarily exempt. On the transfer of a bill, payable to the bearer, by delivery only, without indorsement, the person making the transfer to be deemed a party to the bill; although he may in some cases incur a limited responsibility to the person to whom he immediately transfers it, founded upon particular circumstances, as, for example, upon his express or implied guaranty of its genuineness and his title thereto. Story on Bills, § 200. The defendant not being liable upon the notes as indorser thereof it follows, that the first count is bad, and the demurrer thereto was properly sustained. The second count we also deem defective. Admitting that the defendant impliedly warranted that the note thus transferred had not been paid to him, which would seem to be the case, still he is not liable on the contract of assignment. The plaintiff could only sue to recover what he paid for the assignment of the note, as for money paid upon a consideration that had failed. If property was given for the assignment, then he could only sue for the property, as for property sold and delivered; and if the assignment was for a prior debt then the prior debt only could be sued for. (Story on Prom. Notes, § § 117, 118 and notes.) Here, the consideration paid for the assignment, and to be recovered, if any thing, is not set out. Nothing more is averred in this respect than that the assignment was made "for value received." In what the value was received whether in money, and if so, how much, or property, or by way of satisfaction of a precedent debt does not appear. There is, evidently, not enough stated to show what the plaintiff paid and, therefore rot enough to show what he was entitled to recover. The instrument in writing therein mentioned, executed contemporaneously with the assignment, by which, as is alleged, the defendant agreed that the notes were secured by mortgage, is not set out and therefore the case stands as if the allegations in that respect were stricken out. The parol agreement made, as is alleged, contemporaneously with the written assignment, can not be admitted to vary or extend the effect of the assignment as written. The doctrine in this respect is stated in the case of McClure v. Jeffrey (8 Ind., 79), as follows: "The rule is, that all oral negotiations or stipulations between the parties which preceded or accompanied the execution of the instrument are to be regarded as merged in it, and the latter is to be treated as the exclusive medium of ascertaining the agreement to which the contractors bound themselves." The demurrers, we think, were correctly sustained, and the judgment must be affirmed. The judgment is affirmed with costs. HULL v. CONOVER. 35 Ind. 372. 1871. DOWNEY, C. J. This suit was commenced by William Conover against the appellant, before a justice of the peace, where there was judgment for the defendant. The plaintiff appealed to the Circuit Court, where the death of William Conover was suggested, and his executors made parties plaintiffs in his stead. There was judgment in the Circuit Court for the plaintiffs, from which the defendant appealed to this Court. The first point presented to us is, that the cause of action is insufficient. It consists of the following note: "$150.00. Covington, June 15, 1868. "Eighteen months after date I promise to pay to the order of Hiram Abdill one hundred and fifty dollars, value received, without any relief from valuation or appraisement laws. Interest from date six per cent. "DANIEL HULL." There is no indorsement of the note by Abdill to William Conover, or to the appellees, and there is, therefore, nothing to show any right in him or them to maintain the action. See Well v. Trotter, 4 Blackf. 12; Vandagrift v. Tate, Ib. 174; Hamilton v. Ewing, 6 Blackf. 88; McDonald's Treat. 68, 69. This is not a mere defect of parties. The judgment is reversed, with costs, and the cause remanded. Liability of the Indorser and Rights of the Indorsee.* 64 Vermont, 151; 24 Atl. Rep., 136. 1892. Special assumpsit for the annual interest due on five promissory notes indorsed by the defendant. Plea, the general issue, Judgment for the defendant. The plaintiff excepts. * See Sec. 813, Vol. 6, Cyclopedia of Law. |