
    H. Smith v. Athel Smith.
    Purchase-Money Notes — Rights of Assignee of Purchase-Money Notes.
    One becoming assignee of purchase money notes takes them subject to any defense or set-off that the maker might have made against the assignor.
    APPEAL PROM DAVIESS CIRCUIT COURT.
    October 31, 1877.
   Opinion by

Judge Lindsay:

Appellant, as assignee of Demphrey, took the note sued on subject to any defense, discount or set-off that appellee might have used against Demphrey. Sec. 6, Chap. 22, Rev. Stat.

The liens on the lands purchased by appellee, and for the part purchase price of which the note was given, constituted legal discounts against it. Demphrey could not enforce the collection of the note until he first removed those liens. As he failed to remove them appellee had the right to protect himself by paying off the lien debts, and he can set off these payments against the assignee of Demphrey. There can, therefore, be no doubt as to his right to have credit for the taxes paid, and the amount paid to redeem the land from the purchase at the execution sale.

It may be that the debt paid to Sweeney was not an encumbrance on the land, but it was paid with the knowledge and consent of appellant. He may have consented under a mistake of law and under a misapprehension of his rights. But appellee made no misrepresentations to him, and practised no deception on him, and can not therefore be held repsonsible for his mistake.

G. W. Roy, for appellant.

W. N. Sweeney, for appellee.

Judgment affirmed.  