This is an action to foreclose a mortgage. Several defenses, such as usury and the statute of limitations, are interposed. Many of the questions presented by the pleadings have been already considered by me in prior cases in this district of a like nature, and further reference to them is unnecessary. Some of them have also been considered by the supreme court of this state, and my conclusions, I am happy to state, were fully in accord with those of that learned court. Cheney v. Cooper, 14 Neb. 415, 16 N. W. Rep. 471; Cheney v. Woodruff, 29 N. W. Rep. 275; Mundy v. Whittemore, 15 Neb. 647, 19 N. W. Rep. 694.
Two matters are, however, presented which require notice.
1. Complainant claims that his testator was a bona fide purchaser before maturity. Defendants insist that the testimony fails to establish this fact. It must be borne in mind that the possession of negotiable paper, duly indorsed, is prima facie evidence of a bona fide purchase before maturity. Concede, for the purpose of this argument, that usury in the inception of the paper, which in this case is abundantly proved, docs away with the prima, facie evidence from such possession. We have the positive testimony of two witnesses, complainant and his brother, to the purchase, its time, amount paid, and by one, at least, the information given to the purchaser. The circumstances thus disclosed show a purchase before maturity, payment of full value, and indicate entire igno
2. The other matter is this: Complainant sues as executor. In his bill he alleges the death of Davis, and his appointment as executor by the court of Christian county, Illinois. He produces his letters testamentary, hut no copy of the will. The letters recite the death of Davis, “late of the county of New York and state of New York.” The answer denies that there was any such person as William G. Davis, that Cheney was executor, or that the Christian county court ever had jurisdiction to appoint Cheney executor. That there was such a person as Davis, is, as I have said, clearly established. Tie was domiciled in New York at the time of his death. There is no testimony showing that his will was probated in that state, or that he had any property in Christian county, Illinois, at the time of his death-, and nothing except the recitals in the letters to show that he had any property in the state of Illinois. Now, upon these facts, it is contended that, in the absence of the will, it cannot be presumed that the executor has authority to collect these notes, because that will may have provided some other disposition of them; that as the testator was, at the time of his death, domiciled in
Neither of these propositions can, I think, be sustained. The county courts of Illinois have general jurisdiction of the settlement of estates of deceased persons, with power of appointment of executors and administrators. Rev. St. Ill. c. 37, § 69. The presumption as to their actions is that they are rightly done, and that the authority conferred upon an executor to act within their jurisdiction was lawfully granted. Grignon v. Astor, 2 How. 319. The letters testamentary prove the authority of the executor to act for the estate. He has possession of these securities. Prima fade it is his right and duty to collect them. This is not a case in which the securities are in the possession of another representative of the estate appointed by the courts of the state in which the property is situate, as in Noonan v. Bradley, 9 Wall. 394, or where full authority to sue is not given by the statutes of the state in which the action is brought. The statute of Nebraska is general and full in its terms: “An executor or administrator, duly appointed in any other state or county, may commence and prosecute any action or suit in any court in the state, iri his capacity of executor or administrator, in like manner and under like restrictions as a ■ non-resident may be permitted to sue.” Comp. St. Neb. 1885, p. 324, c. 24. If the will contains any restrictions upon the power of the executor to collect or make any other disposition of these securities, the defendants should have proved the fact; otherwise the debt which they owe the estate they should pay to the proper representative. These are the only questions presented which I deem it necessary to notice.
A decree will be entered in favor of the complainant as prayed for. It is admitted that the case of Cheney v. Brown is' similar, and a like decree will be there entered.