Avirett v. Barnhart

Briscoe, J., delivered the opinion of the Court. The appellant, John W. Avirett, executed a chattel mortgage on the 29th of September, 1890, to J. Wilson Hum-bird, of Cumberland, Md., to secure the payment of a promissory note for the sum of $2,500. On July 5th, 1894, the mortgagee, Humbird, endorsed on the mortgage a receipt for $650 and interest to date, leaving the sum of $1,850 still due, and on the same day J. Wilson Humbird assigned the mortgage to Philip W. Avirett, a brother of the mortgagor. This mortgage was assigned by Philip W. Avirett on Sept. 11th, 1894, to Edward Hoffman and A. P. Connor, and by them it was assigned on Nov. 3rd, 1894, to the ⁵⁴⁷ appellee, Abraham B. Bernhart.

On July 5th, 1894, when the above-mentioned payment of $650 was made, the mortgagor, John W. Avirett, executed a new promissory note for $1,850, payable ninety days after date to the order of J. Wilson Humbird. This note bears the following endorsements : “I hereby assign the within note to Philip W. Avirett, without recourse. J. Wilson Humbird. “Nov. 2, 1894. For value received I hereby assign the within note to Edward Hoffman and A. P. Connor.

Philip W. Avirett. “Nov. 3, 1894. For value received we hereby transfer the within note to A. B. Barnhart. Edward Hoffman, A. P. Conner. “Renewal in part of $2,500 note secured by mortgage for that amount, executed by John W. Avirett, and recorded in the Clerk’s office, Allegany County, Maryland. Philip W. Avirett. “ For value received I hereby extend the within obligation for 1 year from September the 11th, 1894.

Philip W. Avirett.” It appears that the mortgage was assigned by Philip W. Avirett to Hoffman and Connor in September, 1894, and that the note secured by it was assigned in the following November. While Philip W. Avirett was the holder of the note and mortgage, the appellant, John W. Avirett, made to him two payments, one of $600 and the other of $250, with the understanding that they should be credited on the mortgage and the note. No memoranda, however, of these payments were made by the holder on the note, but the same was assigned, after the date of its original maturity, to Hoffman and Connor, from whom the appellee took it. And from a decree refusing an allowance of these credits and directing a sale of the mortgaged property this appeal has been taken.

It is contended upon the part of the ap ⁵⁴⁸ pellee that he is the bona fide holder of the note for value before maturity; that he had no knowledge or notice that any payment had been made thereon, and that he cannot therefore be affected by any equities between the original parties. Whether, however, the appellee took this note before maturity or not depends upon the effect to be accorded to the memoranda made on the note by Philip W. Avirett, by which he extended “ the within obligation for one year from Sept, i ith, 1894.” Now while an extension of the time of maturity of a promissory note may be made with the consent of all the parties so that it may continue to°be a negotiable instrument after the time originally fixed for payment, yet it is not within the power of a payee or holder by his own act alone and without the consent of the maker to make any change in the time of-payment. The evidence in this case entirely fails to show either when the memorandum in question was made on the note or that the appellant, maker of the note, ever agreed that the note should be extended for one year from September nth. On July 6th, 1894, while Philip W. Avirett held the note and mortgage, he signed the following paper: “Cumberland, Md., July 6th, 1894. “ Received of John W. Avirett six hundred