Wofford v. Gaines

McCay, Judge.

1. The common law idea of a novation, is when A is indebted to B, and B to 0, and by mutual agreement B is dropped out, and in consideration of this, A becomes debtor to C. In this way it was competent as it were to transfer a chose in action. This is the novation of the Code, section 2724 ; a new person is introduced to whom the obligation i¡3 due. In the case before us, the note was payable to the payee or bearer. It is admitted that if the renewal had been to the original payee, though a security was added, there would have been no such novation as made a new contract. But when the renewal was made the note belonged to the bearer, and the question is, did the renewal to him alter tlie case ? "We think not. The note was payable to him. He was contracted with, in terms, at the giving of the note. This has been formally held by the supreme court of the United States in reference to the jurisdiction of the United State courts, in suits brought by holders of notes payable to bearer. And this is a fair view of the nature of such a contract. The maker, in terms, contracts to pay to the bearer. When the note goes into the hands of the bearer he is the party to it. If it be renewed, it is renewed with one of the parties to it, and the renewal is simply a contract fixing a new day as to the same matter and with no new or different consideration. No new party to whom the obligation is due is introduced. We think, therefore, this was no such novation as made this a new debt not in existence in July, 1868, at the adoption of the homestead law.

2. We are clear that under the decision of the supreme court in Gunn vs. Barry, the land is subject to the debt. There is nothing in the judgment setting the homestead apart that affects the question. The homestead is good, subject to the debt, as it is to other excepted debts. Had the holder of this debt made the issue that the land could not be set apart as against him, and submitted to a decision that it could, he would be barred. But he was not bound to do this; he had a right to stand by, let the homestead be set off, considering that it was laid off subject to his debt, This has been our uniform holding as to all the exceptions. And at last, that is all that is claimed here. It is not denied that there is a homestead, but that it is good against this debt. It is insisted that this is an excepted case, that the homestead was laid off subject to it. We think the judgment ought to be affirmed.

Judgment affirmed.