
    *John H. Hall v. Sylvester Green and another.
    J EL indorsed lo S. G. a note against M., in consideration whereof S. G. agroed to convey to J. H. a certain tract of land on payment of said note. S. G., by his own laches, failed to collect the note of the maker, and neglected to take the necessary steps to charge J. H. as indorser. Held, that G. had made the note his own, that it should to regarded as payment, and that he was bound to convey.
    
      This is a bill in chancery, reserved in the county of Miami.
    The bill states that, on June 18, 1838, Green gave to Hall a title bond for certain real estate, binding himself to convey the same to Hall on the payment of certain notes then indorsed by Hall to Green (among which was one fpr $325, signed by J. & R. Moore, dated April 30, 1838, and payable six month’s after dato, to Hall or order), by the makers thereof; or, on failure by the makers to pay tho same at maturity, or within a reasonable time thereafter, then on payment of the same by Hall; that all of said notes had been due upward of eighteen months; that Hall had never been notified of the non-payment of any of them; that whether all had been paid or not of his own knowledge he did not know ; but he had been informed that Green and one Kyle, to whom he had indorsed the note against the Moores, had given the Moores time upon it; that it was not paid, and that the makers were insolvent, and that Green refused to execute a deed, though demanded. The prayer of the bill is, that Green may be decreed to convey either to Hall or to said Dye, the other defendant, to whom. Hall has assigned said title bond.
    Green answers, admitting the agreement, the indorsement of the notes in pursuance of the agreement, and the terms of the agreement as stated in the bill, but denies that he ever extended the payment of the Moore note, or that Kyle had done so with his knowledge; admits that the note is not paid, and assigns that as the reason why he does not convey the land.
    *The proof shows that soon after Green procured said note, he indorsed it to Kyle, giving him discretionary power as to the manner of collecting it, and binding himself to pay it if tho makers did not; that Kyle, depending upon the promises of the Moores, neglected' to sue till they became insolvent, and that the note has never been paid.
    R. S. Hart, for complainant:
    The court is referred to the following authorities: Story on Bills, see. 109; 8 East, 242; 2 Taunt. 206; 3 Barn. & Ald. 619; 2 Ohio, 440; 2 McLean, 21; Ib. 369; Ib. 557; 11 Ohio, 102; 13 Ohio, 228.
    Morris & Parsons, for defendants.
    No argument was submitted on the part of the defendants.
   Birchard, J.

This case presents for our consideration but one question. By the contract, which is made part of the bill, Green obligated himself to convey the land therein described, in consideration of certain notes then assigned and indorsed by complainant to Green, among which was a note of J. & R. Moore, dated April 31, 1833, for $325, due six months after date, and payable to Hall.

The deed was to be made by Green, on the payment of said notes by the makers; and, on their default, payment was to be made by complainant.

The defendants rely solely upon the fact that the note of the Moores remains unpaid by them and by complainant.

The substantial question is, who shall sustain the loss of this note? The facts concerning the note, as we gather them from the proof, are these: Green made no demand of the note until *some time after it fell due, and then the maker put him off with a promise to pay, at some short day, a part of it. Soon after, it was sold to one Kyle, who, at Green’s request, managed it as he would a note of his own, trying to coax the makers to pay, and receiving promises of payment at a future day, and in this way suffered two terms of the court to pass without suit; by which means only it became uncollectible of the maker, who failed in the meantime, so that it is a total loss to one of the parties. The note of the Moores must be considered as having been delivered as a conditional satisfaction of the amount due upon its face; and the conditions of the contract as a guaranty of its payment, on condition that the due course, in order to its collection, should be taken. Had it been duly presented and dishonored, and reasonable notice given, and the regular steps pursued to collect it, the loss would have fallen upon the complainant. This not having been done, it must fall upon the holder, and bo regarded as payment. By his own laches, he made the note his own, and discharged complainant from all liability for the loss sustained. See the authorities cited by counsel.

Let a decree be entered for the complainant.  