Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1921-01-12
LIST OF S U P R { M E
COURT DECISIONS

The following decisions have
been announced by the state su-
preme court:
No. 2464, Lea County.
D. w. Dunn, ct al, appellee, VS..
T. l.. Hite, ct al, appellants.
This is a suit on an Indebtedness
of approximately $4,000, which I.
LOnnie Hite owed the firm of Haf-
rison & Dunn, which was represent
ed by a note secured by a chattel
mortgage on cattle owned by the
said r. Lonnie Eiite. The note and
mortgage had been running for
some time and had been hypothe-
Gated by Harrison q Dunn with a
bank in Kansas City, Missouri. I.
Lonnie Hite had been indicted for
larceny of cattle and was tried and
convicted and the case was pend
ing on appeal in the supreme court.
The Kansas City bankers refusing
to carry the paper further, con-
ference was held with T. Lonnle
Hite and advised of the status of
the paper and that Harrison &
Dunn must have additional securl-
| ty. T. Lonnie Hite, together with
, Harrison, had a conference with
n. w. Hite, father of T. Lonnle
IIite, entered into an agreement
with Harrison q Dunn. The L.
| Lonnie Hite cattle were gathered
and sold according to the terms OF
! the contract and the amount re-
allied was insufficient TO SATISFY
| the note and mortgage and some
thing like $4,000. In other words,
! after applying the selling price or
the r. Lonnie Hite cattle, the total
obligation of the Hites then out
standing, including the Sl,opo
owed by the father, amounted TO
approximately $4,000. The elder
Hite refused to pay this sum ana
suit was brought against both Hltes
| to foreclose the n ortgages given 10
secure the indebtedness. 1t was
alleged that r. Lonnie Hite owned
very small number of cattle not
lapplied towards the payment OF the
indebtedness, which 1t was sought
to subject thereto and TO recover
the balance from the father under
the mortgage. From the judgment
foreclosins the mortgages against
| N. w. Hite, he appeals.
Judgment of the court below, al
firmed,
| syllabus by the Court.
1. Where A signs u note as
surety for B, payable to Z, ana
gives chattel mortgage on prop
erty owned by him to secure the
payment of the note on which ne
is surety, and B also gives chat-
tel mortgage on property owned py
him to secure the payment OIL tne
note. and later the maturity OF the
| note is approaching and A and =
enter into written contract with
C, by the terms of which 1t is
agreed that B is to sell all his cat
tile to d at a given price per head
and payment for the same is TO De
applied on the note, and A agrees
that If the money received is not
sufficient to pay the note that ne
Twill give his individual note, due
tin six months thereafter, and Sc
cure the same by chattel mort
gage. and BIS cattle are sold under
the agreement and the money Is
applied. and there remains a de-
ficiency, and A refuses to carry out
the terms of the subsequent con-
tract; held, that the subsequent con-
tract did not supercede and cancer
the original note and mortgage,
and that C had right to proceed
hv foreclosure thereon.
Q. Contracts illegal because OPP
posed to statute, or to public policy,
or to good morals, cannot be rati-
fled: but contracts obtained by act
ual fraud, by undue influence. by q
breach of fidueiary dury and the
like may be confirmed or ratified.
If a party possessing the remedial
right to have contract avoided on
the ground of fraud has obtained
| fun knowledge of all the material
facts involved in the transaction,
has become fully aware Of it's inn
perfection and of his own rights TO
irnpeach it, or ought and might
with reasonable diligence become
so aware, and all undue influence
is wholly removed so that he can
give a perfectly free consent, and
he acts deliberately, and with the
intention of ratifying the voidabie
transaction, then his confirmation
is binding, and his remedial right,