Herring v. Woodhull

29 Ill. 92

• Court: Illinois Supreme Court
• Decided: April 15, 1862
• Status: Published

Opinion

Breese, J.

The first point made in this ease is, that the note was not properly indorsed, the transfer being on the face of the note. Literally, indorsement means a writing, in dorse, upon the back of the bill or note. But it is well established, ‘that though such is its import, it may be made on the face of the bill, and numerous indorsements may be made on a separate paper, called an allonge. Chit, on Bills, *227; Yarborough v. Bank of England, 16 East, 12 ; Rex v. Bigg, 1 Strange, 18 ; Story on Promissory Notes, sec. 121; Gibson v. Powell, 6 Howard (Miss.) 60. And any form is sufficient which manifests an intention to transfer the note. Morris v. Bird, 11 Mass. 436.

This indorsement is in the form of a guaranty, and is sufficient to convey and transfer the title in the note to the holder, as an indorsement. Heaton v. Hulbert, 3 Scam. 489; Partridge v. Davis, 20 Verm. 499. This principle is well established.

We do not suppose there was any necessity for assigning the mortgage. When the note was indorsed, that carried wfith it the mortgage, the note being the principal debt, and the mortgage but an incident. Lucas et al. v. Harris, 20 Ill. 165. By the indorsement of the note and mortgage by Benjamin Moffatt to Daniel C. and Hezekiah H. Moffatt, they became entitled each to one-half the note and its proceeds, and to one-half the mortgage security, and no more; and neither one could transfer any other or greater interest in the same.

The bill filed by appellee, claimed the whole interest by virtue of the assignment of Daniel C. Moffatt to him, and the decree passed to that extent, declaring the appellee the owner of the whole mortgage, and of the moneys that should arise from the sale of the mortgaged premises.

He insists here, as there was a charge in the bill, that Hezekiah H. Moffatt had authorized Daniel 0. Moffatt to assign the mortgage and deliver the note and mortgage to appellant, and as that charge was not denied by H. H. Moffatt, it must be taken for true, and must bind him. There was no actual notice to either of the Moffatts, by summons, of the pendency of the bill, but a publication only, and on their non-appearance, their default was entered, and the matters in the bill taken as confessed. We should think, as notice by publication is, by law, a sufficient notice, the parties so notified must be deemed to be in court, and subject to any legal decree or judgment of the court, and that H. H. Moffatt, by his default, is precluded from denying the fact of the assignment of the mortgage, and of his interest in it.

The appellant sets up, as a part of his defense, that the note was for a usurious consideration, and submits proof that the note was given for the purchase price of a tract of land, and for nothing else, and that ten per cent, interest was reserved thereon.

This note was made in 1854, while the first three sections of the act of 1849, regulating interest, were in force. By those sections, but six per cent, interest „could be reserved on such a contract. The appellant shows that he has paid a large portion of interest computed at ten per cent, per annum. This he may avoid, and the decree for more than six per cent, per annum is erroneous. The bill and exhibits and testimony will be referred to the master in chancery, to take an account of interest paid over and above six per centum per annum, and the interest calculated at six per centum per annum, and no more, which, with the principal sum added, will be the amount of the sum which the Circuit Court of Winnebago county will render in the cause. The costs of this court to be equally divided between the parties.

Decree modified.