Elliott v. Deason , 64 Ga. 63 ( 1879 )

Blecklet, Justice.

1. The uncertainty in the note is aided by the mortgage. In the former a blank was left suitable to the insertion of the word bearer or order; and in the latter, the note is described as payable to the payee or bearer. We think there is no doubt that both documents should be treated as negotiable paper in a commercial sense.

2. The holder of a negotiable instrument has a right to dispose of it before or after due, and with or without receiving value. If, after he has parted with it bona fide, matter arises which would be appropriate as a set-off were he still the holder, and if such matter springs out of transactions wholly disconnected with the paper or the contract on which it is founded, his transferee, the new holder, will not be affected. Code, §2904.

3. Delivery can be made to the absent. Any friend may receive the instrument on behalf of the transferee or beneficiary. This followed by ratification would suffice.

4. A married woman may, in Georgia, take and hold property just as another person. When a mortgage is assigned toiler, and the note to a naked trustee for her use, she is the owner of both, and may foreclose in her own name.

5. It is not impossible for a transaction to be founded on both a valuable and a good consideration. Money may be the motive in part and affection in part — the two combined may make up the whole consideration. The assignment of the mortgage bore date before the debt matured, and purported to be for value received, and for love and affection. There is a general presumption that negotiable paper, in the hands of a transferee, passed for value and before due, unless the contrary appeal's. This was enough to warrant the court in touching upon that subject in charging the julT-

6. If advances were made by Elliott to carry on the business of a partnership of which he and Prentice (Mrs. Deason’s father) were members, the probability is that they were not made on the individual credit of Prentice, but on the credit of the firm. If the firm received the advances, the firm would be the debtor for them, and Elliott’s reimbursement would involve a settlement of the partnership accounts. The balance ought to be ascertained, either out of court or in court. And, certainly, to have an accounting in court, the partners ought both to be present .as parties to the litigation. Here only one of them was present, and for that reason, if for no other, the settlement of the partnership account was, in this suit, impracticable.

I. The transcript from the record of the United States court could not be proved by parol to be incomplete. On the other hand, the clerk’s certificate was quite insufficient to authenticate it. The certificate should have gone much further than it did. But the verdict was correct, and the illegal evidence may now be ignored.

Judgment affirmed.