Farmers' Exchange Bank v. Morse

CHIPMAN, C.

Action on promissory note. Defendants demurred to the complaint; the demurrers were sustained, and plaintiff declining to amend, defendants had judgment, from which plaintiff appeals. The grounds of the demurrers were insufficiency of facts, defect, and nonjoinder of parties defendants, and the statute of limitations. The note sued upon was in form the joint note of eight persons. Three of these joint makers, viz., G. E. Drew, H. L. Drew, and Charles J. Perkins, were not made parties to the action. »

The complaint sets forth a series of agreements contemporaneous with the execution of the note, which explain the history of its execution. Plaintiff had caused the foreclosure of certain mortgages against the makers of the note, except as to one maker, Mrs. Atwood, who signed subsequently; the bank also held another mortgage which it was albout to foreclose against these parties. The agreement recites that the bank is desirous of giving these persons further time to pay the sums referred to. It then recites: "We, and each of us, agree one with the other, in consideration of the extension of time to pay, etc., to sign a joint note, payable to said Farmers’ Exchange Bank, for the aggregate sum total of said judgments, .... and take said lands so mortgaged, subject to the agreement of the said bank above referred to (an agreement for further time) in the proportions as follows.” Then follow the names of the parties and the proportions undivided by which they were to hold the lands.

A trustee was chosen to hold the title and to sell and convey the lands and pay the proceeds to the bank, and it was provided that when said note (the note in suit) was fully paid, the trustee should convey the remaining lands to the parties in the proportions named. This agreement was dated February 20, 1892, and was acknowledged February 24th. As part of the same transaction an agreement was entered into by the bank and these same parties at the same time, by which the bank agreed

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to bid In the mortgaged property and assign the certificate of sale to the trustee agreed upon in the former agreement, and the same parties as before agreed “each to sign a joint note for the aggregate amounts above referred to .... in favor of the Farmers’ Exchange Bank,” etc., and it was agreed that the lands should be sold by the trustee, and the bank agreed to credit the proceeds on the note, and the trustee was to convey" the remaining unsold lands to the parties in the proportion', agreed upon, as already stated. It is alleged that as a part of the same transactions and contemporaneously therewith the note in question was executed and delivered. At the same time the parties conveyed to the trustee. On October