American Funding Corp. v. Pennington

64 So. 845, 107 Miss. 10

• Court: Mississippi Supreme Court
• Decided: March 15, 1914
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

This is an action brought in a justice of the peace court, by appellant, to recover the amount of certain promissory notes made by appellee. When the case was tried in the circuit court, upon appeal, after testimony for both sides had been introduced, the court refused a peremptory instruction in favor of appellant, and granted a peremptory instruction to find for appellee.

The record discloses that on March 8, 1911, appellee made application to the Montray Realty Company to purchase five lots on Long Island, New York. This application was confirmed, and contains the contract of sale. It shows that all payments were to be made to the order of the Montray Realty Company, and when the purchase price was paid in full, according to contract, a full covenant warranty deed was to be issued, free of cost, to ap-pellee. It also stipulates that the lots were to be high and dry and free from all incumbrances, and that the title was guaranteed by the United States Title Guaranty & Indemnity Company of New York.

The purchase price of the lots was sixty-eight dollars and forty cents each, to be paid by check for twenty-eight dollars and fifty cents,- as cash, and the balance in eleven payments, each twenty-eight dollars and fifty cents. The payments were evidenced by the notes of appellee, dated March 8,1911, and payable to Montray Realty Company, or order, at the office of American Funding Corporation, appellant in Washington, D. C. These notes were payable monthly. They were indorsed in blank by the Mont-ray Realty Company, the payee, and thereby, on March 14, 1911, transferred to appellant for a valuable consideration. The notes were duly negotiated before any one of them fell due. The evidence for appellant shows that it did not receive any notice of any equity or defense to the notes.

It seems to be contended by appellee that he refused to carry out his purchase because the lots were not high and dry, as guaranteed to be. We fail to find, -however, any testimony offered by appellee to sustain this contention. On the other hand, there is testimony on the part of appellant that the lots were substantially as described in the contract:

Another contention appears to be that no deed had been tendered by appellant from the Montray Realty Company from whom the lots were purchased. It was not necessary for the appellant, the assignee of the notes for the purchase money,' to tender a deed in order to obtain judgment in this case. Mhoon v. Wilkerson, 47 Miss. 633; Kimbrough v. Curtis, 50 Miss. 117; Boyce v. Francis, 56 Miss. 573.

In the trial it became incumbent upon appellee to show that he had equities or defenses to the notes, and that appellant had due notice thereof. He has failed in this. In truth, the proof fails to establish any equities or defenses to the notes, or any fraud or deceit practiced upon appellee in the matter.

The peremptory instruction to find for appellant should have been given.

Reversed, and judgment here for appellant.

Reversed.