Dawsey v. Kirven

This is an action by appellee, the holder of negotiable promissory notes, against appellants, the makers thereof.

Defendants pleaded the general issue and a special sworn plea denying plaintiff's ownership of the notes. The case was tried by the court without a jury, and resulted in judgment for the plaintiff, from which judgment defendants prosecute this appeal.

The error assigned and most earnestly insisted upon to reverse the judgment is the admission in evidence of a power of attorney purporting to have been executed by one Mrs. M. F. Clements to one F. D. Kirven, the husband of plaintiff, authorizing him, as her agent and attorney, to make loans, collect moneys, satisfy mortgages of record, to assign and indorse notes, mortgages, etc. The main ground of the objection to the introduction of the power of attorney in evidence is that the notary's certificate of acknowledgment of the execution of the power of attorney was not authenticated by the notarial seal of the officer, he being an officer of another state, to wit, Georgia, and the acknowledgment and certificate being made in that state.

The view we take of the case renders it wholly unnecessary for us to decide this question, which is not free from doubt, as is shown by the argument and able briefs of counsel. The question evokes some ancient and technical learning on the subject of the object, purpose, effect, and requisites of private and public seals, scrolls, etc. It is unnecessary to decide whether or not there was error in the admission of this power of attorney, bills of sale, and acts of the attorney thereunder, for the reason, if error, it affirmatively appears that it was without possible injury to the appellants.

The notes sued on were on their face negotiable paper, and were indorsed in blank by the payee, and plaintiff was shown by indisputable evidence to be the holder thereof for value. This, under a long line of decisions of this court, was sufficient to overcome the burden placed on the plaintiff by the sworn plea denying plaintiff's ownership thereof. So, if the power of attorney and all acts of the agent or attorney purporting to be done thereunder were excluded, the plaintiff would undoubtedly have been entitled to recover.

It has been held by this court since the case of Riggs v. Andrews, 8 Ala. 628, and probably before that, that a blank indorsement of a note prima facie vests the title in the holder thereof as completely as can be done by another mode. The possession of the note by plaintiff and its production at the trial, it being indorsed in blank by the payee, is prima facie evidence of ownership. Sawyer v. Patterson, 11 Ala. 523; Lakeside Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444; Berney v. Steiner Bros., 108 Ala. 111, 19 So. 806,54 Am. St. Rep. 144.

The notes being negotiable paper, the legal title thereto, and not the beneficial interest therein, controls as to proper parties plaintiff in suits for the collection of the notes. The fact, if it was made to appear (which is not done here), that the holder of the legal title is not entitled to the proceeds of the judgment, is no defense to the makers in an action by the holder against them. Hanna v. Ingram, 93 Ala. 483, 9 So. 621; Berney v. Steiner Bros., 108 Ala. 116, 19 So. 806,54 Am. St. Rep. 144.

The plaintiff being the proper party to bring the action, and being prima facie the owner thereof, it is no concern of the defendants as to who is entitled to the proceeds of these notes when collected. Defendants would have been protected if they had voluntarily paid the amount to the plaintiff, she being the holder of the notes, and they being indorsed in blank by the payee, and, of course, this judgment is and will be a complete bar to any other action by any other party or parties on these notes; and hence the questions as to whether plaintiff paid full value therefor or nothing, so far as any defense was attempted here to be set up to the notes, are of no concern to these defendants.

Notes like the ones here sued on may be and are often indorsed to banks, or other agents or agencies, merely for the purpose of collection, and in such cases, and those like the one now under consideration, it is of no concern to the defendants, or makers, to whom the proceeds will ultimately be paid.

Aside from evidence to which any objection was interposed, the plaintiff was indubitably entitled to recover. The following propositions are well settled, and control the decision as to plaintiff's ownership of the notes sued on: The holder of paper indorsed in blank may fill in the indorsement so as to vest himself with the legal title, but not so as to change liability of indorser. Hood v. Robbins, 98 Ala. 487,13 So. 574; Land Co. v. Dromgoole, 89 Ala. 505, 7 So. 444. A blank indorsement vests title in the holder of a note as completely as any other mode, and it need not be filled up before going to the jury. Riggs v. Andrews, 8 Ala. 628; Sawyer v. Patterson, 11 Ala. 523; Berney v. Steiner Bros., 108 Ala. 116,19 So. 806, 54 Am. St. Rep. 144. A delivery and transfer of a note transferred in blank possesses such title as will support trover against a party who purchases the note from the transferor. Carter v. Lehman-Durr Co., 90 Ala. 126,7 So. 735.

It results that the judgment of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.