Tankersley v. Graham , 8 Ala. 247 ( 1845 )

GOLDTHWAITE, J.

1. The defendant in the Court below, seems to have placed his defence, in the first instance, upon the ground, that he was entitled to show that his blank indorsement, upon which the suit against him is founded, was intended, and agreed upon, as a special contract, not to be enforced against him, if he did not get a good title for the land sold him; or if a better title took it from him. In this view of his liability, he offered to show that one Green had the government title, and that his. heirs were seeking to recover the land from him. So far as this evidence had the effect to vary or change the contract, ascertained by the law, from the blank indorsement, we think it was properly excluded from the jury. In several cases we have endeavored to show, that the contracts imported by these irregular blank indorsements, are of a fixed, ascertained character, governed chiefly by the nature of the instruments indorsed. [Jordon v. Garnett, 3 Ala. Rep. 610; Milton v. De Yampert, ib. 648.] After .the legal effect of these irregular blank indorsements is ascertained, they fall within precisely the same rules, which obtain as to such as are perfect in their nature, and are alike incapable of explanation, or modification by parol evidence. In Somerville v. Stephenson, 3 Stewart, 271, it was held by this Court, that the contract evidenced by the general assignment of a specialty, could not be vai’ied by parol evidence, as it had a specific legal import. The same doctrine was held in Hightower v. Ivy, 2 Porter, 308, in relation to the indorsement of a note. To the same effect is Dupey v. Gray, Minor, 357; Free v. Hawkins, 8 Taunt. 92. These cases, it is true, seem to be indorsements which were filled up; but it is difficult, in principle, to perceive how any distinction can be drawn, when the indorsement is blank, for in either case,the contract has the same definite legal meaning, and the same evils will flow from permitting the legal effect to be varied. The case of House v. Graham, 3 Camp, 57, was the case of a blank indorsement, and the same rule was considered applicable. We are not unaware, that there are many decisions to the contrary of this, in the American Courts. [See Cowen & Hill’s Notes, 1473, and Dean v. Hale, 17 Wend. 214.] But the decisions of our own Courts have too firmly established a contrary principle, for us to depart from them, even if we did not entirely concur in their correctness.

2. So far as the evidence went to show the consideration of the indorsement, it was proper enough, and seems to have been considered by the Court below; but the attempt to show a failure of the consideration having failed, in consequence of there being no proof that the defendant had been evicted, the proof with respect to Green’s patent, and the suit by his heirs, was properly rejected, as without eviction, these facts constituted no defence. [Cullum v. State Bank, 4 Ala. Rep. 21.]

3. The othe points in the case seem to offer no defence to the action. If, as one of the instructions asked for seems to suppose, Graham acted as the agent of Mrs. McNiel, in making the sale, and the plaintiffs have since paid her the price agreed to be paid for it, they have thereby acquired an interest in this note, which cannot be defeated, except by showing a failure of the consideration, for the indorsement, or a payment of the note by the maker, or indorsers. Such is the effect of all the instructions given, and we are unable to see any error in the refusals of those requested.

The result of what we have said is, the affirmance of the judgment.