Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1860-09-15

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decisions of the Supreme Court, and ascer-
tain how far those decisions have gone Ia
settling the legal yalidy of the mortgages
and notes given by you to the Milwaukee a.
NJ. Rail Road Company. The first case,
Clark vs. Harrington and wife, was ar action
brought to foreclose a mortgage given by
the defendants to the Ii Crosse u M. r.
Road and transferred by the corporation to
Clark. This case sustans the power of
the corporation to receive and accept such
notes in payment for its stock, and the
question Of fraud in procuring these mort
cages was not noticed by the court, nor re-
lied on by the defence. | believe that a
jury in most cases, could TIE evidence be
brought before them, would find the notes
were obtained by representations known to
the Company to be false and fraudulent. =
The difficulty in making this defence avail
able, is, that the notes before due, have
been transferred to holders who, in many
eases at least, must be regarded as innocent
and ignorant of the fraud. The law OBJ
tains throughout the commercial world, that
a note payable to person or his order, or
bearer, if transferred before due, can be eur
forced by an innocent holder, however glar-
ing the fraud in obtaining the note. There
are exceptions to this rule, one of which l
shall mention presently.
The next case decided was the case Of
Roxana Blunt VS. George II. Walker. The
court here decides upon the right of the
Milwaukee q M. Rail Road to accept a
note and mortgage in payment for its stock !;
but neither the effect of fraud, nor the Co
tcmporaneous agreement Of the company
to extingnish the note and Mortgage by ap-
plying the dividends Of tk stock for this
purpose, were noticed by the court. All
papers executed at the same time must be
construed together. 1t is an undecided
question, whether in view of The whole
transaction, the mortgagors ever were stcck-
holders. The transaction was in substance
the lending of the mortgagors credit to the
company--the latter was to sell the mort
cages and raise the mouey to build their
road and save the mortgayors harmless, out
Of the profits. 1t is an undecided question
whether the company have this power
The Supreme Court has not decided upon
the accompanying stipulations ofthe com
pany, nor what character would beimpress-
ed upon the transaction by these agree
ments.
In the ease of CornellS.s Hickens, the
court intimates that the mortgagor cannot
allege fraud as against bona fide holder
Of one of these notes; also that if the com.
pany could take a negotiable note fcI any
purpose, (say for the sale of its WORKOUT or
surplus stock, bona fide holder would be
protected in purchasing nota given to the
company for az mlasgful purpose; such a
holder could not be presumed to know
whether the consideration of the particular
note sold was valid or not.
1t would be useless to dec.aim against
tie decision of the court of final resort, ur-
less we can see clear evidence of corruption
or dishonesty. So far as the facts were
presented to the court, considering that no
papers were presented,
which might give different character to-
the transaction, there was no rational hope
of different decision. | do not believe our
Supreme Court would legislate, or sacrifice
the farm mortgagors in violation of law, TO
sustain the credit of the State. however
that object may be. For one, /
ON in favor Of bringing to the aid Of the
mortgagor every available rule of law-if
their property is to be taken away, let it be
when courts legislature or Congress can af-
ford them no reasonable reiief. Law, like
and theology is an uncertain sci
ence; lawyers and judges, doctors and Dir
vines will differ in opinion on subjects with
in their several proyinces-but there is one
point yet undecided which | think without
doubt, will authorize the nortgagor to urge
the defence OF fraud even as against bonn
iide holder of his note; for as | said, there
are exceptions to IT, protection granted bv
the law to such holder.
In the case of Strong VS. Sage recently de !
cided in the Racine Circuit before Judge
A1J,ggle, it appears that the form Of the trans
ae.ion was 4 bond executed by the Racine
& Miss r. R. Company, payable to a blank |
obligee. The company agrees to pay the
money mentioned therein. to any unknown
holder and to secure the payment of this
company obligation, the lattor assigns to
such holder note and mortgage given to
the company. The bond contains these
words 'sand for the better security of such
payments being made to the holder hereof,
he said company assigns and transfers to
the holders Of this bond a certain note of
$500 executed by s. H. Sage together with
/ mortgage. to ecure the payment Of said
note, dated goth Dec. 1855, payable in FIVE
Tears from the 10th Feb. 1855, interest at
he rate Of ten per cent. per annum, which
'aid note and mortgage are hereunto APP
pended and are transferable only in connex-
on with this DO nd and not otherwise mi
his case the mortgagor was mere surety
or the company; his note is assigned as
security, the bond Of the company
oeing the principal obligation In this case
here IS no doubt that the mortgagor can
how fraud to defeat his note in the hands I
If even an innocent purchaser; because the |
company never parted with its title to the
tote; If the company pays its bond the az