Allin v. Williams

Citations

• 97 Cal. 403
• 32 P. 441
• 1893 Cal. LEXIS 555

Syllabus

<p>Promissory Notes — Action against Indorser — Foreclosure of Mortgage — Liability for Deficiency. — An action may be maintained against an indorser of a note, payment of which has been secured by a mortgage given by the maker, to recover any deficiency resulting after a sale of the mortgaged premises under a judgment of foreclosure against the mortgagor.</p> <p>Id.—Assignment of Deficiency Judgment — Pleading — Judgment against Indorser. — In such action .it is not necessary for the plaintiff to allege or prove an offer to assign to the indorser the deficiency judgment, or that the judgment in the action against the indorser should direct such assignment to be made.</p> <p>Id. —Rights of Indorser — Assignment upon Payment — Condition of Recovery. —An indorser is entitled, upon payment of a note which he has indorsed, or of a judgment against the maker rendered thereon, to an assignment thereof; yet such assignment is not. a condition of the payee’s right of recovery, but is a right accruing to the indorser by reason of his payment.</p> <p>Id. — Indorsement by Agent — Waiver of Protest — Ratification.— The indorsement upon a note of waiver of payment, presentment for payment, protest, and notice of protest, by one whose name has been signed as an indorser by another person, operates as an affirmance and ratification of the prior indorsement.</p> <p>Id. — Defense to Liability of Indorser — Burden of Proof. —The burden of proof rests upon the indorser of a note to prove, as a defense to his apparent liability upon the indorsement, as between himself and his immediate indorsee, that the indorsement was made merely for the purpose of transferring the note from a nominal holder to the true owner, or that the circumstances under which the indorsement was made were such as would render it inequitable to enforce au indorser’s liability against him.</p> <p>Trusts —Money Deposited to Pay Note — Duty of Trustee — Power of Loan. •— A trustee of moneys, placed in his hands for