DARGAN,'J.
It is necessary to ascertain, in the first place, the nature of thé title of the plaintiff,' to the note 'dedared on, as that will aid us in coming to a correct conclusion, whether any of the defences relied on should have been allowed. Henderson, the payee of the note, sold to the plaintiffs in error, in June, 1840, a plantation and about ninety slaves, stock, farming utensils, 8fc. They executed to him eleven promissory notes, the first falling due the' first of May, 1841, and was for $5,000; one falling due on the first- of May of each year afterwards, each for $6,000; except the two' last notes — one of these was for seven; arid -the other-for $21,000. The notes due the first of May, 1844,1845,1846, and 1847, were assigned to the plaintiff, by Henderson on the first day of October, 1840, by deed, for the purpose-of securing certain-debts named in the deed of assignment — -the plaintiff at the same time, giving Henderson a receipt for them,' -by which he' Undertakes to collect "the - notes; arid apply the proceeds in the manner specified in-the deed. -The notes were also indorsed by Henderson to the plaintiff,'but nothing passed from Dunn to Henderson; except the receipt, which was merely an undertaking to collect -the notes; for the purposes indicated in the deed of assignment.
: In what condition, then,-does Dunn 'hold-the notes, or ■ what is the nature of'his title ? Jleisnbt a bona beholder for value, in the mercantile sense Of that term, for he has parted with nothing of value; he has paid’ nothing for them, [266]*266and it is now well settled, that the holder of a note, merely as security for the payment of a debt of the maker, is not a bona fide holder according to the meaning of that term in the law merchant. But that such a holder takes the note, or bill, subject to all equities existing against it, at the time he receives it, see 6 Ala. Rep. 634, and the cases there cited.
But the law permits a debtor to dispose of his property, with the view, and for the purpose of securing the payment of his debts, and when once he has so appropriated his property, the rights of his creditors intended to be secured thereby, attach upon it, and if it is conveyed to a trustee, who assents to the conveyance, and by virtue thereof takes possession of the property, can such a trustee be said to be a mere holder without consideration ? What is the consideration of such a conveyance ? It is to secure the payment of the debts of the grantor, and the trustee assenting to it,- undertakes to perform his duties according to the terms of the deed. Such a conveyance cannot be said to be without consideration, but is founded on such a consideration as the law deems valuable ; and the deed will be sustained for the purposes for which it is intended. As the law will sustain such a deed, and will coerce the trustee to perform the obligations he has assumed, the title to the property passes from the grantor for a lawful purpose, and on a consideration that will support the deed; and therefore the vendor cannot revoke the deed, nor reclaim the property, unless by paying the deb ts secured by it. The conveyance, then, to Dunn, and the indorsement of the notes, gave him a title to the notes, that could not be defeated by Henderson.
Nor could the defendants prevent Henderson from making such a disposition of the notes, nor defeat the transfer, by obtaining other offsets against Henderson, after notice thereof was given them. Dunn therefore holds the legal title to the notes, for a legal purpose, which purpose, neither Henderson nor the defendants can defeat.
We will1 now proceed to the defence relied on. First is an offset for the hire of horses, and two servants, in the year 1840. The horses were not returned, and their value was agreed on — the amount of this offset being something like $250. The next is, that four of the female slaves were un[267]*267sound, and their value diminished thereby $1,200. The next is a debt that Henderson owed to Physic, on which Nelson was security, and which he was compelled to pay— this amounts to $4,231 95. This was paid in March, 1842, by Nelson, but the obligation of Nelson to pay existed before the notes'were assigned, or before they were given. It was also shown that Henderson drew a draft on defendants for $835 92, in March, 1841, payable in January, 1842, which they accepted and paid at maturity. These counter claims, or demands against Henderson, amounting to about $6,500, the defendants sáy, they can assert against the note sued on, in the hands of the plaintiff, first by virtue of our statute, which allows them to assert all offsets, payments, or discounts, against the assignee of a note, (not negotiable in bank,) which they had against the payee before notice of the assignment; and they also say that the nature of Dunn’s title to the notes, is such, that they could assert those claims against Dunn, even by the law merchant, as he is not a bona fide holder of the notes in the legal, mercantile sense of that term. If there should be found no controlling principle of law that prohibited the defendants from interposing these claims by way of offsets, or abatement of the note, I should fully assent to both these propositions, unless indeed there be some of the claims, which could not be asserted against Henderson. But the evidence presents also these facts: the defendants produced in court as paid, the two first notes, the one due in May, 1841, and the one in May, 1842, which amount in the aggregate to $11,000. To whom they were paid does not appear, nor does it appear they were ever assigned. The third note is not paid, but is assigned for the purpose of securing other creditors. It also appears, that the defendants had notice of the assignment, before the first note fell due, and that Henderson in fact was insolvent at the time of the giving of the notes, and died insolvent, and the plaintiff says, that under these circumstances, the defendants ought not to be allowed to assert these counterclaims against this note. That they had'notice of the transfer, before they paid any money to Henderson. That they paid the two first notes without asserting those claims against him, (if indeed those claims have not been already compensated, or allowed [268]*268in the payment of those two notes,) and that it would be inequitable, and unjust, to permit them to insist on these claims now, as offsets to this note. In the case of Callers & Winslow v. Allen, 12 Wend. 355, it was said that where two notes .are held against one man, and he has a demand against the payee, sufficient to extinguish one note, and the payee transfers one note, and retains the. other,, that this demand held by the ppyor against the payee, cannot, be asserted against the holder, although he has received the note after due, and therefore he held it subject to all the equities existing against the. note at the time of the transfer.' So in 6 Dana, 223, it w.a-s held, that where a party has given several obligations, some of which are held by an assignee, and some, by the payee, and the debtor has an offset against the payee, that he shall not assert, his offset against the assignee, in the absence of proof that there was any agreement that his demand should-be an offset against the note or obligation assigned, whilst the. obligee or payee holds; a .debt against him equal to the offset.-.
If these authorities. are just expositions of the law, of course it would follow, that if the, debtor, after notice of the assignment,,pay .the payee in full, and neglect to have his offset adjusted, he could not be permitted, to assert that offset against the assignee.
Free access — add to your briefcase to read the full text and ask questions with AI
DARGAN,'J.
It is necessary to ascertain, in the first place, the nature of thé title of the plaintiff,' to the note 'dedared on, as that will aid us in coming to a correct conclusion, whether any of the defences relied on should have been allowed. Henderson, the payee of the note, sold to the plaintiffs in error, in June, 1840, a plantation and about ninety slaves, stock, farming utensils, 8fc. They executed to him eleven promissory notes, the first falling due the' first of May, 1841, and was for $5,000; one falling due on the first- of May of each year afterwards, each for $6,000; except the two' last notes — one of these was for seven; arid -the other-for $21,000. The notes due the first of May, 1844,1845,1846, and 1847, were assigned to the plaintiff, by Henderson on the first day of October, 1840, by deed, for the purpose-of securing certain-debts named in the deed of assignment — -the plaintiff at the same time, giving Henderson a receipt for them,' -by which he' Undertakes to collect "the - notes; arid apply the proceeds in the manner specified in-the deed. -The notes were also indorsed by Henderson to the plaintiff,'but nothing passed from Dunn to Henderson; except the receipt, which was merely an undertaking to collect -the notes; for the purposes indicated in the deed of assignment.
: In what condition, then,-does Dunn 'hold-the notes, or ■ what is the nature of'his title ? Jleisnbt a bona beholder for value, in the mercantile sense Of that term, for he has parted with nothing of value; he has paid’ nothing for them, [266]*266and it is now well settled, that the holder of a note, merely as security for the payment of a debt of the maker, is not a bona fide holder according to the meaning of that term in the law merchant. But that such a holder takes the note, or bill, subject to all equities existing against it, at the time he receives it, see 6 Ala. Rep. 634, and the cases there cited.
But the law permits a debtor to dispose of his property, with the view, and for the purpose of securing the payment of his debts, and when once he has so appropriated his property, the rights of his creditors intended to be secured thereby, attach upon it, and if it is conveyed to a trustee, who assents to the conveyance, and by virtue thereof takes possession of the property, can such a trustee be said to be a mere holder without consideration ? What is the consideration of such a conveyance ? It is to secure the payment of the debts of the grantor, and the trustee assenting to it,- undertakes to perform his duties according to the terms of the deed. Such a conveyance cannot be said to be without consideration, but is founded on such a consideration as the law deems valuable ; and the deed will be sustained for the purposes for which it is intended. As the law will sustain such a deed, and will coerce the trustee to perform the obligations he has assumed, the title to the property passes from the grantor for a lawful purpose, and on a consideration that will support the deed; and therefore the vendor cannot revoke the deed, nor reclaim the property, unless by paying the deb ts secured by it. The conveyance, then, to Dunn, and the indorsement of the notes, gave him a title to the notes, that could not be defeated by Henderson.
Nor could the defendants prevent Henderson from making such a disposition of the notes, nor defeat the transfer, by obtaining other offsets against Henderson, after notice thereof was given them. Dunn therefore holds the legal title to the notes, for a legal purpose, which purpose, neither Henderson nor the defendants can defeat.
We will1 now proceed to the defence relied on. First is an offset for the hire of horses, and two servants, in the year 1840. The horses were not returned, and their value was agreed on — the amount of this offset being something like $250. The next is, that four of the female slaves were un[267]*267sound, and their value diminished thereby $1,200. The next is a debt that Henderson owed to Physic, on which Nelson was security, and which he was compelled to pay— this amounts to $4,231 95. This was paid in March, 1842, by Nelson, but the obligation of Nelson to pay existed before the notes'were assigned, or before they were given. It was also shown that Henderson drew a draft on defendants for $835 92, in March, 1841, payable in January, 1842, which they accepted and paid at maturity. These counter claims, or demands against Henderson, amounting to about $6,500, the defendants sáy, they can assert against the note sued on, in the hands of the plaintiff, first by virtue of our statute, which allows them to assert all offsets, payments, or discounts, against the assignee of a note, (not negotiable in bank,) which they had against the payee before notice of the assignment; and they also say that the nature of Dunn’s title to the notes, is such, that they could assert those claims against Dunn, even by the law merchant, as he is not a bona fide holder of the notes in the legal, mercantile sense of that term. If there should be found no controlling principle of law that prohibited the defendants from interposing these claims by way of offsets, or abatement of the note, I should fully assent to both these propositions, unless indeed there be some of the claims, which could not be asserted against Henderson. But the evidence presents also these facts: the defendants produced in court as paid, the two first notes, the one due in May, 1841, and the one in May, 1842, which amount in the aggregate to $11,000. To whom they were paid does not appear, nor does it appear they were ever assigned. The third note is not paid, but is assigned for the purpose of securing other creditors. It also appears, that the defendants had notice of the assignment, before the first note fell due, and that Henderson in fact was insolvent at the time of the giving of the notes, and died insolvent, and the plaintiff says, that under these circumstances, the defendants ought not to be allowed to assert these counterclaims against this note. That they had'notice of the transfer, before they paid any money to Henderson. That they paid the two first notes without asserting those claims against him, (if indeed those claims have not been already compensated, or allowed [268]*268in the payment of those two notes,) and that it would be inequitable, and unjust, to permit them to insist on these claims now, as offsets to this note. In the case of Callers & Winslow v. Allen, 12 Wend. 355, it was said that where two notes .are held against one man, and he has a demand against the payee, sufficient to extinguish one note, and the payee transfers one note, and retains the. other,, that this demand held by the ppyor against the payee, cannot, be asserted against the holder, although he has received the note after due, and therefore he held it subject to all the equities existing against the. note at the time of the transfer.' So in 6 Dana, 223, it w.a-s held, that where a party has given several obligations, some of which are held by an assignee, and some, by the payee, and the debtor has an offset against the payee, that he shall not assert, his offset against the assignee, in the absence of proof that there was any agreement that his demand should-be an offset against the note or obligation assigned, whilst the. obligee or payee holds; a .debt against him equal to the offset.-.
If these authorities. are just expositions of the law, of course it would follow, that if the, debtor, after notice of the assignment,,pay .the payee in full, and neglect to have his offset adjusted, he could not be permitted, to assert that offset against the assignee. These authorities appear to me to be just; they are in unison with the maxim, sic utere tuo, ut alienwm non Icedas. Here Henderson had assigned the four notes,-falling due. May, 1844,. 1845, 1846, 1847, for $>.6,000 each — they are insufficient to pay in full the notes intended by them to.be secured; the defendants knew they were assigned to pay those debts named in.the deed; they had .the legal right to have their claims or offsets adjusted, and paid, in.the settlement of the two first notes held by Henderson. They waive their legal right, and now wish to assert this right to the prejudice of the creditors,.who have no other fund to look to -for payment, and who have not been, guilty of any negligence. I do not think they ought to be permitted. If the demands have not been .compensated, they now attempt to use as offsets, it has been either from negligence to their own interest, or from a waiver of their rights against Henderson.in the settlement of the two first notes, and .cer[269]*269tainly it is not unjust to make them bear the consequences of their own act, or omission. Nor can the fact that they have purchased some of the debts secured by the deed to Dnnn, -enable them to plead these debts as offsets. The deed contemplates, that the debts named in it should be paid from the proceeds of the notes pari passu, and without preference ; but to permit the defendants to buy up part of the debts secured by therdeed, and to have the whole allowed as; offsets to the notes conveyed, would be, to give the debts ob~ • tained by the defendants, a preference over the others, and : thereby to change the terms of the deed, or to defeat one of its objects — that is, .the debts intended to be secured by it,. . should be paid pari passu, and without preference. The-defendants cannot gain a preference by buying up the debts,. to pay which the notes were assigned.
The charge of the court was, that the evidence was insufficient to prevent a recovery on the note. Under this charge,. if by possibility the jury could have allowed any one of the debts, here attempted-to be asserted as offsets, in accordance - with the rules of law, as here laid down ; or if there was the slightest conflict in the testimony, the cause would be reversed. But not one of those claims should have been allowed as offsets; there is no conflict of testimony, unless it could be said to exist as to the unsoundness of the four slaves, and this case is decided, as if the defendants had the right to claim the abatement of ¡$1,200 against Henderson; therefore the judgment of the circuit court cannot be reversed. The propriety of this course is fully shown by the case of Simms v. Simms, 2 Ala. Rep. 117, and the case of Ralston v. Cullum & Smith, decided at the last term of this court, and Swift v. Fitzhugh, 9 Porter.
The judgment is affirmed.