Rooker v. Rooker et al. Carpenter, in part payment of a house and lot in Sturges, Michigan, bought by Hickox of Carpenter and wife for $4.000, in payments as follows: $1,800 in hand, $1,100, September 30, 1871, and $1,100 September 30, 1872, with interest at ten per centum per annum; that Carpenter and wife were to execute and deliver a deed for the premises to Hickox on the payment of the $1,100 due September 30, 1871, at which time possession was to be given to Hickox and the deferred payment secured by mortgage of the premises sold; that the notes were credited on the contract of sale at a valuation of $1,800, which was the only payment made on the contract at the commencement of this action; that the value of the premises sold was $4,000; that the contract contains a stipulation of forfeiture at the option of Carpenter on the failure of Hickox to perform on his part; that the contract was entered into by Carpenter in good faith, and that the notes were received by him, in part performance of the contract on the part of Hickox, in like good faith without notice of any fraud on the part of Rooker or of Hickox. On these facts, the cause was reserved by the district court to this court for decision. W. P. Howland, for plaintiff in error: From the facts established by the findings of the district court, the burden of showing affirmatively that he received said notes in the ordinary course of business, in good faith, for value, and before due, is thrown upon the defendant, Carpenter. Chitty on Bills, 12 Am ed. 296; Davis v. Bartlett & St. John, 12 Ohio St. 534; McKesson v. Stanbury, 3 Ohio St. 156; Monroe v. Cooper, 5 Pick. 412; Woodhull v. Holmes, 10 Johns. 230; Miller v. Race, 1 Burr, 452; Grant v. Vaughn, 3 Burr, 1516; Peacock v. Rhodes, 1 Doug. 663; Edwards on Bills, 686. To maintain this burden, he must show : 1. That on the faith and credit of the notes he purchased them, and paid their fair and reasonable value, in the ordinary course of business. Bailey v. Smith, 14 Ohio St. 396; Rooker v. Rooker et al. Hall v. Wilson, 16 Barb. 548; Bay v. Coddington, 5 Johns ch. 54. 2. That he parted with something of value, or some substantial right, on the faith and credit of these notes, which was paid for them. Bailey v. Smith, 14 Ohio St. 396; Roxborough v. Messick, 6 Ohio St. 448; Edwards on Bills, 372, 373; 20 Johns. 636; Stalker v. McDonald, 6 Hill 93; White v. The Springfield Bank, 1 Barker, 225. Hickox could not avoid repaying to Carpenter any part of said notes which the plaintiff may recover, for, as assignor, he impliedly warranted his title to Carpenter. Ed. on Bills, 188, 290; Herrick v. Whitney, 15 Johns. 240; Murray v. Judah, 6 Cow. 484; Morrison v. Currie, 4 Duer, 79; 16 Johns. 201; Bruce v. Bruce, 1 Marshall, 157; Dumont v. Williams, 18 Ohio St. 515. 3. He must show that he received the notes before due. The note came into his hands disgraced upon its face, and he took it subject to all the equities and defects of title in the hands of his assignor, Hickox. 3 Kent's Com. 103; Edwards on Bills, 690 and 371; 15 Ohio, 242; 3 Cow. 252; 24 Wend. 97; Newell v. Gregg, 51 Barb.; 39 Barb. 645; 13 Pet. 65. Tinker & Alvord, for defendant, Carpenter: 1. Carpenter was a bona fide purchaser and holder for value of the notes in question; and the plaintiff, as against Carpenter, has no valid title or claim, legal or equitable, to said notes. Bay v. Coddington, 5 Johns. Ch. 54; Baily v. Smith, 14 Ohio St. 396; Gould v. Lessie, 5 Duer, 260; Roxborough v. Messick, 6 Ohio St. 441; 3 Story on Prom. Notes, secs. 191, 192, 195, and cases cited; 13 East. 180; 20 Pick. 545; 4 Barb. 304; 67 Penn. St. 59; 34 N. Y. 247; 24 Barb. 651; 20 Johns. 637; 2 Kernan, 551; Lay v. Wissman, 36 Iowa, 305; 6 Hill 93; Edwards on Notes and Bills, 372, 373, and cases cited. REX, J. From the facts found by the district court, it is quite clear that, however fraudulent the purpose and intent of Rooker and Hickox were, in the transfer of the Rooker v. Rooker et al. notes afterward sold by Hickox to Carpenter, and however fraudulent the intent and purpose of Hickox were, in the sale and delivery of them to Carpenter, such intent and purpose did not in any wise affect the good faith of Carpenter in the transaction. The notes were all negotiable, and were received by Carpenter from Hickox, without notice of the fraud charged by the plaintiff, for a valuable consideration allowed on his part for them; and, under the well-settled principles of commercial law, Carpenter is the legal holder and owner of them, and, as against Rooker or Hickox, or the creditors of either of them, is entitled to the proceeds thereof. The fact, as found by the district court, that under the agreement Carpenter was to retain the possession of the property sold until the conditions precedent to the execution and delivery of the deed by Carpenter and wife were performed by Hickox, does not affect Carpenter's title to the notes in question. He had paid value for the notes, by relinquishing a valuable right in the property sold, on the credit thereof. At the time the notes in question were sold and delivered by Hickox to Carpenter, the note of Harrison L. Conly, of November 10, 1866, for $200, payable to Nelson Rooker, or bearer, two years after date, was past due, and it is claimed by counsel that, being past due, it was dishonored on its face, and the defendant took it subject to all the equities and defects of title which attached to it in the hands of his assignor. Of this the plaintiff has no right to complain. She had acquired no equity in the note, either before its transfer by Rooker to Hickox or by Hickox to the defendant, and the fact that the defendant holds it subject to any defence the maker, Conly, may have against it, does not entitle the plaintiff to claim an equity in it as the creditor of the payee. The remaining point urged by counsel, to defeat the title of Carpenter to the notes in question, is the inadequacy of the price paid by him for them. Gage and Gage v. The State. This question is, as we think, virtually disposed of by the district court in the finding, that the notes were received by Carpenter in part performance of the agreement on the part of Hickox, in good faith, and without notice of any fraud on the part of Rooker, or of Hickox. To defeat the title of Carpenter to the notes, on the ground of inadequacy of the price paid for them, the inadequacy must be such, under the circumstances, as to impeach the good faith of the purchase. The circumstances given in evidence in the district court are not disclosed by the record; but we are bound to presume that they were such as fully sustained the finding by that court of good faith on the part of Carpenter. We are not called upon to review the findings of the district court, but simply to pronounce judgment upon the facts stated in the record. These facts, in our opinion, entitle Carpenter to a judgment in his favor. Judgment for defendant. WELCH, C.J., WHITE, GILMORE, and McILVAINE, JJ., concurred. JAMES P. GAGE AND WILLIAM GAGE V. THE STATE OF Оно. In an action upon a recognizance entered into before a justice of the peace, for the appearance of a party in court to answer a criminal charge, it is not a good defense to show or allege that at the time of his arrest, and at the date of the recognizance, an indictment against him for the same offense was pending in said court, without showing or alleging that the party had been arrested upon such indictment. MOTION for leave to file a petition in error to the District Court of Morrow county. This was an action by the state against the plaintiffs in error, upon their recognizance entered into before a justice Barnet v. Young, etc. of the peace, conditioned for the appearance of James Dodge before the court of common pleas to answer to a charge of forgery. The answer set up, as defense to the action, that at the time of James' arrest and examination, and at the date of the recognizance, there were two indictments pending in the court of common pleas against him for the same offense on which he was so arrested and bound over. The court sustained a demurrer to this answer, and rendered judgment for the state; and the district court, on proceedings in error, affirmed the judgment Andrews & Allison, for the motion. BY THE COURT. Leave must be refused. There was but one arrest, and therefore the question whether a second arrest could be made in the same case does not arise. The defendant was not in custody, either of his bail or of the state. He was at large, and the state had a right to arrest him by either of the two processes provided by law, namely, by capias on the indictments, or by complaint before a justice of the peace. Motion overruled. DAVID BARNET v. HOWARD YOUNG, ASSIGNEE OF B. C. BEALL & Co. Where a bill of exchange was drawn for the sole accommodation of the payees, and accepted by the drawee for the same purpose, and, owing to the insolvency of the payees, the acceptor was compelled to pay the bill, and brought an action against the drawers to recover the amount paid -Held: 1. That there was no implied obligation on the part of the drawers to reimburse the acceptor. 2. That the drawers and acceptor, as between themselves, in the absence of any understanding to the contrary, were not co-securities for the payees, or liable to contribution. |