
    WEAVER & Others v. FIELD & Others.
    APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
    Submitted January 6, 1885.
    Decided April 13, 1885.
    In a suit to foreclose a mortgage on land in Louisiana, given to secure the pay- ■ ment o’f negotiable promissory-notes to their holder, it was held,, .on the facts, that the-plaintiff was never the own^- of the notes, as against the mortgagor, or those holding the land under him by deeds in which they as-Mimed the payment of the notes and mortgage.
    
      Bill in equity to foreclose a mortgage. The facts are stated in the opinion of'the court. ■
    
      Mr. J. D. Bouse and Mr. ’William Grant for appellants.
    
      Mr. B. H. Marr for appellees.
   Me. Justice Blatcheord

delivered the opinion of the court.

This is a suit in equity brought by Daniel Weaver, in April, 1881, in the Circuit Court of the United States for the Eastern District of. Louisiana, against Spencer Field, Senior, Spencer Field, Junior, and Frederick T. Field. The bill prays that the defendants be decreed in solido to pay to the plaintiff the amount of three promissory notes, made by Spencer Field, Senior, to his own order, and indorsed by him, dated November 1, 1873, one for $2,000, at one year, one for $1,500, at two years, and one for $1,500, at three years, with interest at the-rate of eight'per cent, per annum from maturity; and that certain land covered by a mortgage, of even date with the notes, given by ■ Field, Senior, to one Williams, to secure the' payment of the notes to their holder, be sold, and the riotes'foe" paid out of the proceeds. The other two Fields are made parties as having .successively become grantees of the land, and assumed, each in the deed to himself, which he executed, the payment of the notes and the mortgage. Weaver having died iii July, 1881, the suit was revived in the names of the appel-' lants, as his heirs, in February, 1882.

The bill avers that Weaver is the holder and owner of the notes. The answer of the three- defendants, filed in June, 1882, avers that Weaver never'--was'the owner of the notes, and never the holder of them for value or in good faith ; that the notes and mortgage were made by Field, Senior, for the sole purpose of enabling him to raise money for his own. purposes by the sale, or discount, or other use, of the notes; that the mortgage was made in' favor'of Williams, or any future holder, in order to facilitate the use of the notes; that Field, Senior^ was not indebted to Williams; that Williams gave no consideration for the notes, and was merely the nominalf mork gaged, without interest; that tbe notes were never tbe property of Williams^ nor $id be ever have them in bis possession with tbe knowledge or consent of Field, Senior; that, from tbe date of tbe notes, they remained in tbe possession of Field, Senior, until be used them, and - delivered them to one Folger, as security for a loan; that, when sucb loan was paid, Folger returned tbe notes to Field, Senior, wbo retained them in bis possession until on or about June 8, 1874, when be deposited them with Weaver, to be used, if practicable, to raise money for tbe uses and purposes of Field, Senior; that, after tbe notes bad so been deposited, and .while they were in tbe possession ■ and custody of Weayer, Weaver caused Williams to pledge tbe notes to him, Weaver, as security for tbe note of Williams for some $2,000; that Williams bad no power to make sucb pledge, and tbe same was a mere nullity, for tbe reason that Williams.did not have the notes in bis possession, and they did not belong to him at tbe time tbe pledge was made; that tbe notes, at that time, belonged to Field, Senior, and were in tbe custody and possession of Weaver, to whom tbe ■ facts with respect to tbe ownership and the possession of the notes were necessarily known at tbe time tbe pledge was made; that Field, Senior, did not, at any time after tbe notes were so returned to him by Folger, negotiate them, or issue or deliver them to any person for value; that, by reason of tbe premises, tbe notes and mortgage were extinguished and became of no effect; and that Weaver never bad, nor have any persons deriving title from him, any right or cause of action against tbe defendants, or any one of them, on tbe notes or. tbe mortgage.

There was a replication, and proofs were taken, Field, Senior, and Williams being witnesses for tbe defendants. Tbe bill was dismissed by a decree which states that tbe court considered that, by the undisputed evidence of Field, Senior, and Williams, and tbe circumstances of the case, it was shown that tbe notes in suit, after being issued and delivered to Folger, were taken up by, and came into tbe possession and ownership of, the maker, and were thus, under the laws of Louisiana, extinguished by confusion; that Weaver had notice of all this; and that, by tbe extinguishment of tbe notes, tbe mortgage fell.

Without reference to the ground stated by the Circuit Court as that on which it dismissed the bill, we are of opinion that the dismissal was proper. The matters of fact averred in the answer, as above set forth, are established by the evidence. It is shown that Weaver never acquired any title to the' notes as owner, or as holder of them as security for any indebtedness from Field, Senior, to him; and that he received them from Field, Senior, as agent, to raise or advance money on, for, or to Field, Senior,-and failed to do so, and retained them tortiously, and without the assent of Field, Senior. When Weaver first, in February, 1878, took legal proceedings to enforce the mortgage, Field, Senior, in the petition in the suit he brought against Weaver, in March, 1878, more than three years before Weaver died, to restrain Weaver’s proceedings, denied that Weaver held or owned the notes, and alleged, in substance, 'the same facts set up in the answer in the present suit. We have carefully considered the argument on the facts'made on the part of the appellants, but do not deem an extended opinion upon them necessary. • The property in the hands of the grantees was bound only to the extent it was bound in the hands of the mortgagor, and only to respond to a lawful holder of the notes.

Decree affirmed.  