Morgan v. Hays

WILLSON, C. J.

[1] (after stating the facts as above).

It was not disputed that the Hays notes were a part of Mrs. Morgan’s separate estate, and appellants insist the testimony was not sufficient to show that her title to the one A. M. Morgan sued on had passed to him. That note, like the others made by Hays, by its terms was payable to Mrs. Morgan or order. It was not pretended that she in person, by writing thereon or otherwise, had transferred it to A. M. Morgan or to any one else. On the contrary, it was conceded she had never in person in any way assigned it. The contention was that her husband, with her knowledge and consent, had verbally transferred it to said A. M. Morgan. There was testimony tending to show that she was willing that the notes should be pledged to secure a loan of money which her husband endeavored and failed to obtain; but none, as we view the record, tending to show that she consented to the sale made by her husband to A. M. Morgan, or that she knew her husband contemplated making a sale of the note to any one. Therefore we think the judgment in favor of A. M. Morgan cannot be affirmed on the ground that there was testimony to support a finding that in transferring the note to him L. H. Morgan was the agent of his wife. As it cannot oe supported on any other ground presented by the pleadings, it follows that we think the judgment should be reversed.

[2] It appeared that at the time they made the note for $140 to Collier and McMichael appellants were not indebted to said Collier and McMichael, never afterwards were indebted to them, and that that note was made and the Hays notes pledged as security for its payment, for the purpose alone of indemnifying said Collier and McMichael against their liability as sureties on a note for $140 due June 14, 1910, made by L. H. Morgan to the Cass County State Bank, and the payment of which was further secured by a mortgage made by L. H. Morgan on certain horses. It further appeared that said note and mortgage to the bank were canceled February 28, 1911, when another note due November 1, 1911, covering the same debt, made by L. H. Morgan, with one Collier and one Kirkland, instead of Collier and McMichael, as sureties, was delivered to and accepted by the bank in its place. In the oral argument on the submission of the appeal it was stated that the note last mentioned had been paid — by its maker L. H. Morgan, we assume. If it has been paid by him, on another trial Collier would not be entitled, on any view which might be taken of the questions made by the assignments relating to this branch of the case, to recover on the note made by appellants to him and McMichael, or on the Hays notes pledged to them, for the purpose of indemnifying them against this liability as sureties for the debt of L. I-I. Morgan to the bank. Therefore we-think it is unnecessary to determine those questions.

The judgment is reversed, and the cause is remanded for a new trial.