James Moore Wayne

“ After remarking that misrepresentations of a transaction are liable to suspicion, he says: 'But if, upon investigation, the real transaction shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed of his real equitable rights, unless it be in favor of a person who has been in fact injured and deceived by the misrepresentation. ”

“ And the question is, whether a mortgage to one partner, purporting to secure a debt due to him individually, can, as against a bona fide purchaser, without notice of any parol understanding between mortgagor and mortgagee, be set up as a security for advances made by the firm of which he is a member. ”

“ Either the admission or retirement of a partner puts an end to the right to make further advances upon the credit of the security, as against the junior encumbrancer, and, if the amount due at the time of such change of the firm is afterwards balanced by payments on account, nothing remains due on the mortgage. ”

“ There are cases in which it has been held that the security continues, though new partners are introduced into the firm. But this was only as against the debtor, or his assignees in bankruptcy, who have only his rights, and by force of an agreement by the mortgagors to extend the operation of the security to the new firm. ”

“ Floyd, who did the financial business of the firm of Floyd & French, testifies that the notes just mentioned were given for advances; but he claims a credit of $1,500 on the note, exhibit D; and states that the note for $450, exhibit E, had not been given for money advanced, but that it and another note for the same amount were given for the interest for one year on the note for $5,500. Floyd also states that the note marked exhibit I, for $5,500, was signed by himself when he signed the mortgage, and that he personally made the negotiation with H. A. Tucker & Co. ”