Mussey v. McLellan , 19 Me. 161 ( 1841 )

The opinion of the Court was delivered by

Tenney J.

This action is upon a negotiable promissory note against a prior by a subsequent indorser. The proper demand and notice had been made and given, in order to ren-r der the parties to the note liable, according to mercantile usage. The writ contained also the money counts. It may well be doubted, whether the parties stand in such a relation to each other, as to entitle the plaintiff to recover of the defendant on this note as negotiable paper, even if the former were really the holder. By the’contract of Nov. 26, 1836, they mutually agreed to hold themselves accountable to each other for the one half of said note, should the promissors neglect to pay the same, when at maturity. But the plaintiff is not the holder of the note; he has not paid and taken it up ; it is now the property pi the Exchange Bank, or its assignee, and no other party can maintain^, an action thereon as it stands before us; and the plaintifffrelies upon the contract with the defendant, and contends that he is.entitled tq recover because he has paid more than one half of the nofe, and fqr thfit excess. Has more than half the note been paid ? If so, has it been paid by the plaintiff ? More than one half of the execution arising from this note, appear^ by the indorsements thereon to have been paid; this has been done by .a set-off of store No. 9, on Union wharf and flats adjoining, and by the sale of the riglff qf redeeming certain parcels of land previously set off upon .an execution against the plaintiff in favor of the Cumberlan4 Bank. After the first levy was made upon the execution recovered upon this note, the Bank assigned to E. McLellan all right, title, claim and demand in and to the balance due on the execution, and the judgment whereon the same issued, and to the original debt on which the same was recovered. This assignment could not change the mutual relation of the parties to this suit, they being strangers to that transaction. It is said by the defendant’s counsel, that the last levy and indorsement upon the execution is a nullity, and that the latter, by a proper process, may be cancelled. It may be true, that, as only the right of redeeming a portion of the several parcels of land set off on the execution in favor of the Cumberland Bank was sold, the purchaser had no right to redeem that portion alone, without the consent of the Cumberland Bank, which it seems was denied; and notice was given at the sale to the officer and the purchaser that it would be so denied, and no redemption has taken place. Yet, as the assignee of the judgment made the purchase, when apprised of his situation, and when he could have stopped the proceedings, and caused the indorsement to be made, we do not think we are authorized to say, that the indorsement is no satisfaction of the execution. The Cumberland Bank may yet receive the money for the several parcels of land set off, the right of redeeming which was supposed to be sold on the execution in favor of the Exchange Bank.

But has the plaintiff paid the sums indorsed upon the execution ? It is not pretended that he has paid, otherwise than by the levies. Before the interests attached upon the original writ were seized on the execution, the plaintiff had given deeds of the whole to different individuals. He was so possessed, that the estate passed by his conveyances, liable to be taken away or diminished by the inchoate right of the attaching creditors. If their attachments had expired, the interest owned by him would have been perfect in his grantees. As the attachments were succeeded by levies, the rights of redeeming only were available to them. But in no event were the deeds to be treated as void —- the levies would not make them so, although they impair the value. The property of the grantees has been taken, in consequence of the attachments, to discharge a portion of the plaintiff’s debt, and a recovery in this action would give him a twofold consideration for his land. If his deeds contained covenants, which fact does not appear, he could not prevail on the ground that he is liable thereon; the grantees do not appear to have been dispossessed, and before more than nominal damages could be recovered by them, they must remove the incumbrances. But such a liability would be insufficient, to entitle the plaintiff to the excess over one' half of the execution against him, recovered upon the judgment on the note in question.

The plaintiff must become nonsuit.