Shrom v. Williams ex rel. McMeal

The opinion of the court was delivered, by

Read, J.

The nominal plaintiff in this case, who was the original mortgagee, was offered by the defendant, the mortgagor, to prove that only a part of the amount which the mortgage was given to secure, ever was received by the mortgagee, and that the equitable plaintiff took the said mortgage with a knowledge of the facts. The nominal plaintiff was willing to testify, but he was objected to by the equitable plaintiff and rejected by the court. '

This was a proceeding in rem on the mortgage, in which primd facie, the original mortgagee had no interest which could be benefited by his testimony in this case. In fact he was to testify against his interest, as under certain circumstances it might render him liable on his assignment. But it is said that he was the endorser on the promissory note, which this mortgage was given to secure, and that a judgment in favour of the defendant in this suit, could be given in evidence in an action against him as endorser. Is this so ? If the nominal plaintiff were no party to the record, he would have been competent, because he could not use it for such a purpose, and why should he not be considered in the same light as if a legal assignment had been made and the suit would then have been brought in the name of the assignee.. Besides, if the judgment was obtained on his own testimony, he could not use it in any other suit by the equitable plaintiff.

But the note was the principal debt and the mortgage only collateral, and a failure to recover on the latter did not bar the remedy on the former.

The witness should have been permitted to testify.

Judgment reversed, and venire de novo awarded.