Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-22

This is an attachment bill filed in the Chancery side
Of the Common Law and Chancery Court of the city
of Memphis. The Indebtedness charged is upon the
promissory note in these words:
son or before the first day of January 1857 promise to nay
James W. Jnes Order five thousand dollars, for value
esived JOIN s MoGEHEE,
CHAs. F. DlEDRIDGr"
This note was endorsed by the payee to the com
plainants in New Orleans, La on the 18th day of
January 1856, in consideration of their letter of
credit authorizing JONES' the endorser TO draw on
them for the same amount, which he did, and they
paid the draft.
The consideration for which this note and another
for the same amount, and due at an earlier date,
was 400 acres OF land in COahoma county, in the
State of Mississippi which the payee conveyed to the
maker of the notes by deed with covenant of gen.
eral warranty of title dated oath of June, 1855.
The notes were made and the deed executed in the
State of Mississippi which was the residence of
both parties
1t turned out that IGO acres of the land was in
numbered to the amount of about $500, and to
other part of l60 acres Jones had title. The in
cumbPance was evidenced by lien retained in the
deed by Sansford and wife to Jones for the same
land which was of record McGehee received pos
session of the land and sold it, and his vendee still
holds the possession, but he has paid the note of
So 600 first due and more than sthe amount of the
note now sued on to clear the membranes and
perfect his ttle and it very clearly proven that
Jones was, at the time the incumbrance and defect
OF TUE were ulScOYereQ lnSOlNeDl. ANA we LIllk
it is also proven that Jones frauduenty suppressed
the truth as to the condition of his title to the land
McCiehee resided in Pamela county, and Jones re
sided upon the land in Coahoma county. McGehee
with the witness cambridge went to CoahOma county
to buy land; the witness does not know that Nc
Gehee examined Jones' title but the witness in
presence of JONES' asked McGehee If he had not bet
ter 90 and examine the records. and he said no; that
Mr.. Jones face l0dS sufficient guarantt on that sub
jet.
ITo,o n oorGJopce &c eNnressod in Jones and he
ought then to have spoken out and disclosed the
dition of his title. His silence was efectua to de
ceve as a suggestion of talsehood would have BEEN
and it appears very satisfactory from the ties timony
of this witness that McGehee did not in fact,
inc the records Jones' title and on the contra
nv there is no evidence that he did his title pa
pers.
Now the question to be determined is. whether or
not this state of facts constitutes IN McGehee good
defence TO the note as against these complainans.
The note was made in the State of Mississippi and
the right and liabilities of the parties must be gov
erned by the law of that State.
See Story on Conflict of Laws, sd edition. secs.
29G, 81; Story APromissory Notes, (2d edition.
l55, los
The Statute of Mississippi has this provision:
All bonds, obligations, bil-singe promissory notes
land all other writing for the payment of
money or any other writings for the payment
'ot money or any other things, shall
land may be assigned by endorsement whether the
'same be made payable to the order or assigns of
'the obhgee or payor or not Had in all
factions commenced and sued upon and such as
signee bond obligation, bill single promissory note
cor other writing As aforesaid; the defendants shall
"be allowed the benefit of all want of lawful con.
ssideraton. payments, discounts and set-offs made
chad or promised against the same previous to no.
.tce of the defendant any law usage or custom in
"auv wise to the contrary notwithstanding, on the
Same manner as if the same had been sued and
prosecuted by the obligee or payee therein
This statute and the construction given to it by
the Judicial Tribunals of the State OF Mississippi TO
which we have been referred, change the rule OF
the commercial law in regard to the rights Of en-
dorsers and assgnees and lets IN all detences as
against them which would be available 20 sle maker
against the payee But it is insisted for Me com
planants with much zeal and ability that ReGehee
could not defend against this note If he was sued
by the payee for the reason that he took covenants
of warranty from Jones security for mis- title, and
that he has not been evcted; and until there is an
eviction he cannot resist the payment Of the pur-
chase money.
Such is the general rule of law, but it does not
prevail when the vender is guilty of a fraud in the
sale, or IS insolyent and both exist in this 1t
Is urged that McGehee could not have been defraud
ed because the title of Jones' the vendor, was of
record. and he Is presumed to have notice Of its
character, and that the ncumbrance and defects in
the title could be seen by inspection of the re-
cords. This presumption arises when there is no
evidence that the party did inspect the record
and in the absence of positive fraud or concealment
which we find to exist IN this case.
In the court below there was reference IN the
Clerk and Master, who reported that McGehce had
paid to clear the land of membranes and to per-
feet the title, more than the amount due on the
note, and there were exceptions to the report and
thereup0n the chancellor dismissed the bill We
think he did right and affirm the decree.
5. W. COCHRAN, Special Judge
Judges Caruthers and Mckinney cOncurred in the
result announced in the foregoing opinion.
Test N. D. WELSH, Clerk.