Freeland v. Hodge

Bullard, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment rendered against, him as the maker of a promissory note. His counsel *180insists, that it should be reversed, because the plaintiff failed to prove the endorsement of JBacli and of Jacobs, and because the court improperly changed and modified the judgment, after it had been rendered.

In. an action by the holder against the maker of a promissory note, where it is shown by an authentic act, that the note sued on was delivered by the plaintiff, already endorsed in blank by the payees, as part of the price of real estate sold by him to the defendant, he will recover without proof of any of the subsequent endorsements in blank. Such a note not being acquired in the ordinary “course of business from the endorsers, they will be considered In the light of sureties of the maker. The original holder of a note endorsed in blank, being in possession, he may sue the maker, and recover without proving the endorsements, except the payee, as the note passes by delivery. The plaintiff may have his judgment altered, contradictorily with the defendant, from a ■judgment with mortgage and liberty to seize certainproperty, í°, a general judgment imlh-mortgage.

*180It appears by the copy of an authentic act, that the note was delivered to the plaintiff, already endorsed by Hodge, Oxnard & Co., as part of the price of real estate sold by him to the defendant, and was not acquired by the plaintiff in the ordinary course of business, from the endorsers. Hodge, Oxnard & Co. were in truth sureties of the purchasers; and such is in substance the allegation in the petition. Nor is it alleged that the plaintiff acquired the note by the subsequent endorsement of Bach, although it is alleged that the note was also endorsed by him. It was, therefore, not necessary to prove his endorsement, which we may fairly presume was added as further security. Nothing shows that the note was ever out of the possession of the plaintiff, except for the purpose of collection. We are not authorized to notice the pretended endorsement of Jacobs, which is neither proved nor alleged by either of the parties. The original holder, therefore, appears still in possession of the note, and the real or pretended endorsement being in blank, it might pass by delivery. Mourain vs. Devall, recently decided, ante 93.

The appellant further urges, that the original judgment was according to the prayer of the petition, and that the plaintiff had no right to have it modified, as was done on motion of his counsel.

The petition contains both a prayer for the seizure and sale of the mortgaged property, and for general relief. The judgment first rendered, was against the defendant, for the amount of the promissory note, with liberty to seize and sell the property mortgaged, upon the production of the notes, or upon making the holders thereof parties to the execution. It was afterwards, contradictorily with the defendant, modified, so as to operate as a general judgment, without regard to the mortgage. Of this we think the defendant has no right to complain. He owed the money, and the plaintiff was entitled to a judgment generally, leaving the execution *181to be regulated according to law, and reserving the defendant’s right, if any he had, to insist upon the mortgaged property being first seized, but permitting him to show other property, if he thinks proper. •

It is, therefore, ordered, adjudged and decreed, that the • , .i . . J ° judgment of the District Court be affirmed, with costs.