Higgins v. McDonald

Citations

• 17 Cal. 289

Syllabus

<p>Suit on note and mortgage executed by defendants to Sloss & Co., and assigned to plaintiff after maturity. Defendant McD. avers in his answer, that the consideration for the note and mortgage was received by his codefendants, and that he executed the same for their accommodation; that the assignment to plaintiff was a fraud on him, McD., and that the consideration of the assignment was paid in whole or in part with money advanced by his codefendants for that purpose; that he also deposited with Sloss & Co., as additional security, certain notes or “scrip ” issued by the “ Camp Far West Water and Mining Co.,” and that prior to the assignment to plaintiff, Sloss & Co. converted these notes to their use, and refuse to account for them: Held, that if the averment as to the consideration for the assignment be true, the amount advanced by McD.’s codefendants should be credited on the note and mortgage, and the recovery be limited to the sum actually paid by plaintiff; that if the codefendants paid the whole, the debt was discharged and plaintiff cannot recover,</p> <p>jHeld, further, that the equities of the parties might be different, if, as between the defendants, McD. were liable for any portion of the indebtedness.</p> <p>Held, further, that as to the notes or “scrip” held by Sloss & Co. as additional security, the rights of McD. are the same as they would be in an action prosecuted by Sloss & Co., and that plaintiff—being chargeable with notice of the equities between McD. and Sloss & Co.—must credit his note and mortgage with the value of this “ scrip.”</p>