Coons v. Kendall

Howell, J. Plaintiff sues on a note for $2500, made and indorsed by P. F. Kendall, tutor of the defendant, and asks to enforce a mortgage with which it is identified, on the allegation that the said note and mortgage were executed in conformity with an order of the probate court homologating the proceedings of a family meeting which advised and authorized the same. The defense is, that the said note and mortgage were executed, to the knowledge of plaintiff, for the specific purpose of putting improvements on property belonging to said minor, but was given to plaintiff as collateral security for an individual debt of the tutor, for the sum of $700, evidenced by a note of said tutor, and that the minor can not be held responsible therefor. *444 There is a prayer for a judgment in favor of defendant and the surrender of the note. The evidence sustains this defense, and hence the judgment in favor of the defendant is correct. It was an improper use of the note by the tutor, and from the allegations of plaintiff’s petition, he was aware of the purpose of the note and mortgage, while it is shown that the note for $700, upon which this note was a collateral, was unconnected with the minor’s interest, and an individual transaction of the tutor, who had no authority for so using the said mortgage note. Judgment affirmed.