886
FEDERAL' REPORTlm.
'of a third state when he 'died. and the recitals of the -letters only show that
15;
he had ,property in the state, and not in the county where the let,ters were isthe will being probated there.· sued, and there is no evidence
JUDGMD':r-OF DiSMISSAL-WHEN A BAR.
of
If a suit is dismissed on accoiInt of the failure of plaintiff to submit himself to examination, the judgment is not a bar to 8. subsequent suit.
'
-
_
Action begun July 1884, to foreclose a mortgage given to secure a loan of $1,000 and interest. There were two notes,and ten interest coupon notes, which, '\'Vith the mortgage, were dated July 16, 1872. The principal notes were payable in. five years; the ,coupons, in one, two, three, four, and five years, respectively. Usury,statute of limitations, and former adjudication, among other defenses, were set up. Among other evidence the defendant introduced a deposition of P. D. Cheney, taken in another suit, to which were attached letters written by Cheney, dated in July and August, 1876, urging payment of the interest coupons. Cheney testified, in the present case, that he sold the notes and mortgage sued on in April, 1875, to the testator, William G. Davis. C. E. Magoon, (0. P. Maaon, of counsel,) for complainant. S. P. Davidson and T. Appleget, for defendants, .claimed, among other things, that the defense of usury was not avoided by the fact, if shown, that plaintiff's testator was a brma fide purchaser of the notes for value; lind' before maturity, as the five-years statute oflifuitations had run on the notesjciting Oheney v. Cwper, 14 Neb. 419, IGN. W. Rep. 471. BREWER, J. This is an action. to, foreclose a mortgage. Several de,. {enses, such as-usury and the statute of limitations, are interposed. Many of the quesiions presented by the pleadings [IBVe been already considered by main prior cases in this district of a like fiature, and fur.. to them is unneceSSat'y. Some of them; have 'also been considered by the supreme conrtof this state, and my conclusions, I am to fully in accord with those of ,that learned court. Oheney v. CQfY[ier, 14 Neb. 415,16 N,. W. Rep. 47k,oheney v. Woodruff, 29 N. W. Rep. 275; Mundy v. Whittemore, 15 Neb; 647,19 N. W. Rep. 694. Two matters are, however, presented which require notice. 1. Complainant claims that his testator was a lxma fide purchaser before maturity. 'Defendants insist that the testimonyfails to establish this fact. It must be borne in mind that the possession of negotiable paper, duly indorsed,· is prima facie evidence of a bona fide purchase before matliat.usury in the turity.. Concede, for the purpose of, inception of the paper. which in this case is abundantly proved, away with the prima facie evidence from such possession. We have the positive testimbny of and4is 1:jrother, to the purchase,itStime, .amount paid, i.lnd by one, at .lea8t,· the information given to thepurobaser. The cir<,'llmstance8 thus disclosedi show a purchase before maturity, payment of full value, and indicate entire. igno-
SSee Lewis »&(1. Ren. - . v.
' ..
,
(Cal,) 11 Pac. Rep. .'
and note; Moore v. J.ordan, (Kan.)13' " ,',
CHENEY V. STON15. '
887
ranee on the: part of the purehltser of the matter attending the giving of the notes and mortgage. As against this, there is no direct testimony. That which iB relied upon is this: Testator in his life-time brought an action in this court to forecl()se this mortgage. Defendant sought to take his testimony, and obtain¢d an order for his examination. Failing to subnilt himself to suehexamination, the court dismissed the action. Of course, such dismissal is no bar,-presents no case of reB adjudicata. Cheney v. Cooper, 14 Neb. 415, 16N. W. Rep. 471. Further, there is the testimony of one witness that he attended at an office in New York city, in behalf of defendants, at a time fixed for the examination of the complainant; that a gerttleman appeared and was sworn, gave his name asWilliamG. Davis, the complainant, but, when asked what the initial "G"·stood for, seemed confused, and repeated the letter "G" three times, said "George," and immediately thereafter excused himself on the plea ora .prior engagement, and never reappeared for examination. In addition, two letters of'Cheney, the complainant, are produced, written after ,the time of the sale"testified to by him, urging, in behalf of thb lender, the payment of the overdue interest. The inference sought to bedravvn from this is that there was no such person as William G. Davis, the' alleged testator; that he was 0. myth; that the pretended sale was fietitiousjand that Cheney-was all the while the real owner. The inference 'is far-fetched. Several witnesses testify to an acquaintance with and knowledge of William G. Davis. The reality of, such a person is estal>1isnM: Hiscoiiduot at the examination may create a suspicion, but that iaall." letter, even if evidence against the defendant's estate, d6ritains no Itssertionof title denial of sale. It is such a letter as migfl(wellcome from tne original 'negotiator of the loan, still the owner of asmall note unpaid, and recognizing the duty of doing what he can to obtain'payment of the interest on the principal notes. Neither of these matters are suffiCient to overthrow the positive testimony as to the bona fide8 of testator's purchase. 2. The'otber matter'is this: Complainant sues as executor. In his bill be alleges the death of Davis, and his appointment as 'executor by the court of Christian county, Illinois. He produces his letterstestamentnry, but no copy of the will. The letters recite the death of Davis, U late of the county<>f New York and state of New York." The answer denies that there was any such person as William G. Davis, that Cheney was executor, or Jl:tat the Christian county court ever had jurisdiction to appoint Cheney executor. That there was such a person as Davis, is, a.s I have said,clearly established. He was dOthiciled in New York at the of his deatp. There is no testim.ony showing that his will was probated in tbat state, or that he had any property in Christian countY,IlllUois" at the time of his death, and nothing except the redtals in the letters to show ,that he had any property in.' the' state .{)f Illinois. Now, up0:tl. thesefaeUl,jt is contended that, in the absence Of the will, it cannot l;)e presumed that the executor has authority to collect these notes"bElcausethat ,will may have provided some other dispositi(:m of them; that as the teStator was, at the time of his death, domiciled in
or
.'
888
FEDERAL REPORTER.
New York, the primary jurisdiction for the settlement·G)f his estate is vested in the <lourts of that state; that there the willm\1llt first be probated; and that in Illinois there can be only ancillary'administration, and that limited to property in that state; and, finally. that, as it is not shown that testator left any property in Christian cO\1nty, the courts of the county had no jurisdiction of the estate even for purposes of ancillary administration. , Neither of these propositions can, I think, be sustained. 'l'he county oourt!!! of Ulinois have general jurisdiction of the settlement otestates of deiceased persons, with power of appointment of executors and administrators. Rev. St. Ill. c. 37, § 69. The presumption as to their actions is that they are rightly done, and that the authority oonferred upon an executor to act 'within their jurisdiction was lawfully granted. Grignon v. Astor; 2 How. 319. The. letters testamentary prove the authority of the executor to act for the ,estate. He has possessjon .of these securities. PritMfaci.e it is his right and duty to .oollect them. This is not a case in which the securities are in the possession of another representative ,of the estate appointed by the courts of the 'state in which the property situate, as in Noonan v.Bradley, ,9. :Wall. 394, or where full d.uthority to sue is not given by the statutes ofthe state in which the action is brought. The statute of Nebraska is and full in its terms: "An executor or administrator, duly appointed in any otll;erstate or county, may commence and any action, or suit, in any .court in the state, in his capacity of executor, or ,administrator, in like manner and under like restrictions as a non-I;esident may be permitted to sue." Comp. St. Neb. 1885. p. 324, c. 24. :If the will contains apy restric>tions upon the power of the executor to collect or any other disposition of these securities, the defendants should have proved the fact; otherwise the debt whicll they owe the .estate they sh,ould. pay to the proper representative. These are the only questions presented which I deem it necessary to notice. A decree will be entered in favor of the complainant as prayed for. It is admitted that the case of Oheneyv. BrflW'n is similar, and a like decree will be there entered.
'. l'
BRANCR t1. DAVIS
8.t1d others. Tenn,.1886.)
(Oircuit Oourt, M. D. 1.
BONDOP ':PROBATE JOOGE-LWILITY ON ...... FAlLURE;T6 MAKE TAX-RoLLCODE 6139: ' ' .
,The by Code Ala. § 4115 upon the probate judge to make and deliver a to the tax collector, upon the levy of a tax by the county , commissi'oiiers, is a duty incident to hiin,ffice as judge, and not 'as 'sioner;and,for neglect of it anactionean be maintain,edupon his bond bya Judgm;\l/lt ICfeditor, of, tbecounty, payw,hose judgmen,t the, tax was levlel1, 689 of the. Code, pr!lvldlng that a of a ,probate judge may besue'd·by anyone sustaming an mjuryby the faIlure of.the Judge to perform certaJn specified duties, or "any other official duty."