ments are sometimes made between husband and wife. The remarks of the mother to the probation officer merely show a mother's solicitude for her son, and were in the nature of an evasion of further questions, which, if answered candidly, might have taken from her the custody of her child. When we take into consideration the evidence showing the immorality of the deceased, and his failure to attend church, the remark of Mrs. Thomas concerning a preacher is not unusual. Many times, under such circumstances, stern but well-meaning expounders of the gospel, in delivering a funeral discourse make remarks indicating the loss of hope for the soul of the deceased, which, to say the least of it, do not find receptive lodgment in the hearts of the bereaved.

[4, 5] We are of the opinion that the evidence in this case is sufficient to warrant the presumption of a valid common-law marriage between the petitioner, Missouri A. Thomas, and the deceased, and that the petitioner was entitled under the law of this state to name the administrator.

This cause is reversed, with directions to set aside the judgment rendered, and render judgment directing the county court to revoke the letters of administration heretofore granted, and to grant letters to N. J. Gubser, or to any other competent person named by Missouri A. Thomas; the costs of the appeal to be assessed against the defendants in er

ror.

PER CURIAM. Adopted in whole.

WESTLAKE v. COOPER et al. (No. 8387.) (Supreme Court of Oklahoma. Feb. 12, 1918. Rehearing Denied March 26, 1918.)

(Syllabus by the Court.)

1. BILLS AND NOTES 167 - NEGOTIABILITY -ACCELERATING MATURITY.

The negotiability of a promissory note is not destroyed by interpolating provisions for accelerating its maturity made in an accompanying mortgage, but not contained in such note.

2. BILLS AND NOTES 365(1) BONA FIDE HOLDER-DEFENSES.

Defenses available between prior parties to a negotiable promissory note cannot be interposed to defeat recovery thereon in an action by a holder in due course.

3. APPEAL AND ERROR 173(1)- THEORY OF DEFENSE.

A theory of defense neither suggested by the pleadings nor relied upon at the trial will not be considered upon appeal. 4. APPEAL AND ERROR

878(1)-RIGHT TO ALLEGE ERROR-DEFENDANT IN ERROR. "This court will not consider whether, in the trial of a cause, there was error in a ruling against defendant in error, not involved in any error assigned by plaintiff in error, in the absence of a cross-petition in error." St. Louis, I. M. & S. Ry. Co. v. Lewis, 39 Okl. 677, 136 Pac.

396.

Commissioners Opinion, Division No. 3. Error from District Court, Kingfisher County; James B. Cullison, Judge.

Action by Elva E. Westlake against Henry Cooper, Robert Tutt, and others. Judgment by default against all the defendants except defendant Tutt, who answered, and recovered Judgment, and plaintiff brings error. Reversed, and cause remanded for a new trial.

F. L. Boynton and C. L. Billings, both of Kingfisher, for plaintiff in error. McKeever & Moore, of Enid, for defendant in error.

BLEAKMORE, C. This action was commenced in the district court of Kingfisher county on December 18, 1914, by the plaintiff in error against defendants in error, seeking recovery upon two promissory notes and the foreclosure of a real estate mortgage securing same. On December 4, 1915, judgment as prayed was rendered upon default against all defendants except Tutt, who had answered. By the petition it is alleged, in substance, that Henry and Carrie Cooper executed and delivered to Robert Tutt their two promissory notes of date November 22, 1913, for $100 and $225, respectively, bearing interest at the rate of 10 per cent. per annum, payable at the office of Harry C. Fitch, Hennessey, Okl., on November 1, 1914, and November 1, 1915, together with a real estate mortgage securing the same, by the terms of which mortgage it was provided that "upon default of the payment of any part of the principal or interest or any one of said notes at maturity, or upon the failure to pay any lawful assessment upon said premises when the same shall become due and payable, each and all of said several amounts herein secured shall immediately become due and payable, and this instrument shall be subject to foreclosure according to law"; that before the maturity of I said notes, the defendant Tutt indorsed upon each thereof, "Pay to Harry C. Fitch. Robert Tutt," and contemporaneously assigned and transferred the mortgage securing same, together with said notes, to Harry C. Fitch; that before the maturity thereof, for a valuable consideration, Fitch indorsed, transferred and delivered said notes, with the mortgage duly assigned by him, to the plaintiff, Westlake; that on the day of its maturity, through a notary public, plaintiff duly presented the $100 note, and protested same for nonpayment, and pursuant to the provision of the mortgage, on December 15, 1914, declared the $225 note due and payable, and duly presented and protested it for nonpayment; that at the time of making said protests the notary public posted notices of the same to Robert Tutt and Harry C. Fitch to their respective post office addresses, postage prepaid, etc.

Defendant Tutt answered by way of gen

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

eral denial, and as a "second defense," after admitting the indorsement and delivery of the notes to Fitch, set forth that such indorsement was only for the purpose of transferring the notes and his rights under a certain chattel mortgage which he alleged had also been executed as security for the payment of said notes, and that it was at the time agreed between him and Fitch that he should not become liable as endorser upon said notes. He further alleged that he assigned the real estate mortgage in suit "without recourse," but that after its execution the assignment was altered to read "with recourse." The answer to the second defense alone is verified.

Trial was had between plaintiff and defendant Tutt on December 15, 1915, at which, over objection, defendant was permitted to adduce testimony tending to sustain the theory of his answer relative to the alleged agreement with Fitch releasing him from liability as an indorser. The court charged the jury as follows:

"The court further instructs you that there is but one question for you to determine in this case, namely: Were the notes and mortgage in question traded, delivered, and assigned by Robert Tutt to Harry C. Fitch with or without recourse?

*

"The court instructs the jury that the defendant Robert Tutt in this case alleges and says that he traded, transferred, and assigned the notes in question and the mortgage to Harry C. Fitch, in full payment for a house and lot in the city of Hennessey, Okl., and that when he delivered said mortgage to the said Harry C. Fitch he assigned the same without re

course.

mortgage accelerating its maturity if de-
fault be made in the payment of the $100
note), but upon a contingency, and is there-
fore nonnegotiable, for which reason plaintiff
could not take it as a holder in due course.
By the Negotiable Instruments Law (chap-
ter 49, R. L. 1910) it is provided:
"Sec. 4051. An instrument to be negotiable
conform
must
to the following require-
"Third. Must be payable on demand, or at a
fixed or determinable future time.

ments:

*

"Sec. 4054. An instrument is payable at a determinable future time, within the meaning of this chapter, which is expressed to be payable: "First. At a fixed period after date or sight; or,

"Second. On or before a fixed or determinable future time specified therein; or,

"Third. On or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain.

"An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect."

Manifestly, by its own terms, the note in question is expressed to be payable at a fixed period after date, and, independently of the mortgage accompanying it, is a negotiable instrument. Do the provisions of the mortgage render its maturity contingent, and thus affect its negotiability?

The general rule frequently announced in this jurisdiction is that a note and a mortgage given to secure its payment are construed together (Okla. City Development Co. V. Picard, 44 Okl. 674, 146 Pac. 31; Sims v. Cent. St. Bank, 155 Pac. 878; First Nat'l Bank v. Howard, 158 Pac. 927, not yet officially reported); but, so far as we are informed, this court has never recognized the doctrine that under such rule the negotiability of a promissory note is destroyed by interpolating the collateral stipulations of an ac companying mortgage not contained in such note. If such were the rule, every note, when secured by mortgage however simple in its terms, might be deprived of its otherwise

"In this connection the court instructs you that said alteration is a very material alteration, and the burden of proof is upon the defendant Robert Tutt that said alteration was made, after the assignment and delivery of said notes and mortgage, by the defendant Robert Tutt, to Harry C. Fitch; and, if you find from the preponderance of the evidence in this case that the said notes and mortgage were sold and delivered to the said Harry C. Fitch without recourse,' and that the assignment of said mortgage was changed or altered to read 'with recourse' after said notes and mortgage were as-negotiable character. signed and delivered to the said Harry C. Fitch, It will be noted that the stipulation for then it will be your duty to find for the defend-acceleration of payment is contained in the mortgage, and not in the notes themselves. There was verdict and judgment for de- The notes are evidence of the debt, fixing the fendant, and plaintiff has appealed.

ant Robert Tutt."

terms and time of its payment. The mortIf plaintiff is a holder in due course of gage gives a lien upon real estate to secure the notes in suit, then clearly the collateral the promise to pay contained in the note, and agreement with Fitch to the effect that de- merely affords an additional remedy for fendant should not be liable, as indorser failure to perform such promise; its proviwas not available as a defense to this action, sions relating wholly to the security. The and the instructions above set forth were holder of the notes might have abandoned prejudicially erroneous. Section 4107, R. L. the mortgage entirely and sued and recover1910; Hodgins v. Northwestern Finance ed on the notes; in which event the fact Co., 46 Okl. 95, 148 Pac. 717. Defendant that a mortgage had been given as security neither pleaded nor attempted to prove that plaintiff was not an innocent holder of the note in question and for value before maturity.

[1] It is contended by defendant that the $225 note is not payable at a determinable

(no matter what provision it contained relative to acceleration of the time of payment of such notes) would have been immaterial and ineffectual.

In Farmers' Nat. Bank v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217, it

In Board of Trustees of Westminster College v. Peirsol, 161 Mo. 271, 61 S. W. 811, it is held:

"Where a deed of trust provides that in default in the payment of the interest the whole note shall become due for the purpose of foreclosure, the entire note becomes due for that purpose whenever the interest becomes due and remains unpaid, but, except for that purpose, the note is not affected by a deed of trust.'

"It is further insisted, however, that section, is held to be a distinct agreement from the 793, Wilson's Rev. & Ann. St. Okl. 1903, which mortgage, and, if couched in proper terms, the provides, 'Several contracts relating to the same note is negotiable." matters between the same parties, and made as parts of substantially one transaction, are to be taken together,' concludes this question in favor of the defendant in error. This section was borrowed by the lawmakers of the territory of Oklahoma from the statutes of Dakota Territory. The same statute was retained in force in the state of North Dakota. In the case of First National Bank of St. Thomas v. Flath, 10 N. D. 281, 86 N. W. 867 (section 3900, Rev. Code N. D. 1899), this section was construed and held to constitute a rule of interpretation merely and united several contracts into a single contract only for such purposes, and that a real estate mortgage and the notes secured thereby did not constitute a single contract, but remained as separate contracts, except for the purposes of interpretation. No authority is cited by the defendant in error construing such provision otherwise. We necessarily conclude that the stipulation in the mortgage regarding attorney's fees does not render the note of December 19th nonnegotiable. It is also a well-supported rule that, if the note is negotiable, the mortgage securing the same shares the same immunity from defense. First Nat. Bank of St. Thomas v. Flath, 10 N. D. 281, 86 N. W. 867; Carpenter v. Longan, 16 Wall. 271, 21 L. Ed. 313."

In Phillips v. Williams, 33 Okl. 766, 127 Pac. 1072, the court held:

"Where W. and wife sued P. on two notes, due, respectively, April 4, 1910, and September 4, 1910, and to foreclose a real estate mortgage executed by him, of even date, to secure their payment, and where the notes contained no reference to the mortgage but the latter provided that upon failure to pay principal and interest as evidenced by the first note, the mortgagees may declare the whole debt due and payable at once and proceed to collect said debt and to foreclose said mortgage,' held that, although the notes and mortgage evidenced separate contracts, the mortgagees could take advantage of said clause to foreclose, and that, a personal judgment on both notes was proper."

*

And it quoted with approval the holding in McClelland v. Bishop, 42 Ohio St. 124, as follows:

To the same effect is Owings v. McKenzie, 133 Mo. 323, 33 S. W. 802, 40 L. R. A. 154.

We conclude that the stipulation in the mortgage accompanying the notes in suit in no wise affected their negotiability, and, as a corollary, that plaintiff is a holder thereof in due course.

[2, 3] It is urged by defendant in his brief that the provision in the mortgage to the effect that upon default in the payment of the first note the second should immediately become due and payable, if relating merely to the foreclosure of such instrument, could not accelerate the maturity of the second note so as to affect his liability as an indorser, and therefore the notice of its dishonor alleged to have been given before its maturity was ineffectual, and also that the action upon such note was prematurely commenced.

As to this contention it seems sufficient to say that such theory of defense was not suggested by the pleadings or relied upon at the trial in the court below, but is presented here for the first time, and therefore may not properly be considered. Buel, Pryor & Daniel v. St. Louis & S. F. Ry. Co., not yet officially reported, 163 Pac. 536.

Defendant further contends that, notwithstanding he was permitted to introduce evidence and prevail in the trial court upon a theory of defense not available against plaintiff, yet the judgment in his favor was proper

reason that plaintiff failed to establish that notice of dishonor of the notes in suit, without which he was discharged from liability as an indorser, was given him as required by the Negotiable Instruments Law, and upon this phase of the case insists that the court below erred in overruling his demurrer to plaintiff's evidence.

"Where there is a series of negotiable notes in the usual form, for distinct sums of money, payable at distinct and specified times in the fuly rendered, and should be affirmed, for the ture, with a mortgage to secure each, according to its tenor and effect, which contains a stipulation that, if default be made in the payment of any one 'then each and all should fall due, and this mortgage to become absolute as to all' said notes remaining unpaid at the happening of such default' held that such stipulation relates to the remedy by foreclosure or other proceedings under the mortgage, and upon such default the mortgage may be foreclosed for the whole debt. It is a stipulation for the advantage of the mortgagee, and of full force as to a remedy on the mortgage, but does not operate to vary or extinguish the obligations expressed on the face of the notes themselves for general purposes."

In Bright v. Offield, 81 Wash. 442, 143 Pac. 159, construing provisions of the uniform Negotiable Instruments Law identical with those above quoted from our statute, it is said:

"According to what we believe to be the better rule, a mortgage securing a note, though referred to in the note, but without expressly adopting its conditions, is merely ancillary to the note, and the conditions found in the mortgage alone will not change the character of the note as a negotiable instrument. The promise to pay

Under the rule which obtains in this jurisdiction we are precluded from considering the action of the trial court in this regard.

[4] In St. Louis, I. M. & S. Ry. Co. v. Lew

is, 39 Okl. 677, 136 Pac. 396, it is held:

"This court will not consider whether, on the trial of a cause, there was error in a ruling against defendant in error, not involved in any error assigned by plaintiff in error, in the absence of a cross-petition in error."

And in the body of the opinion it is said: "At the conclusion of the evidence the trial court sustained a demurrer to the evidence offered for the purpose of showing subsequent illness resulting from the cold suffered by plaintiff while in the waiting room, and, by the instructions given the jury, limited her right of recov

ery to pain and suffering experienced by her | Harry Randall, of Fairview, for defendant during that time; but, although plaintiff except in error. ed and at this time complains of this action of the trial court, she has not filed cross-assignment of errors here, and we are unable to consider whether there was error in this ruling." In Hume, Trustee, v. Brown Shoe Co., 33 Okl. 634, 126 Pac. 823, it is held:

FIRST NAT. BANK OF DALTON, OHIO, v. leged that the note was given in part pay

(Supreme Court of Oklahoma. March 26, 1918.) number of persons, and that it was agreed

*

and wholly inoperative, unless the note was
transferred by the payee to a third party. Such
indorsements are not at all uncommon.
This was both a guaranty and an indorsement,
which passed a full title to the note."
Section 4682, Revised Laws, reads:
"In the case of an assignment of a thing in

"No. 8. The jury is further instructed that the note in suit is nonnegotiable and that the plaintiff in this case took the note in suit from Clyde E. Rudy subject to all the equities and defenses against it, in favor of the defendant, that the defendant would have had if the note had remained in the hands of the said Rudy, and the fact that the note is nonnegotiable was notice to the plaintiff of such equities and de-action, the action of the assignce shall be withfenses."

[1] The defendant insists that the indorsement on the back of the note, "For value received, I hereby guarantee payment of the within at maturity, or at any time thereafter, with interest at the rate of eight per cent. per annum until paid, waiving demand, notice of nonpayment, and protest," is not such. an indorsement as to shut out the equities of the original makers of the note.

If the note was nonnegotiable then it was subject in the hands of the plaintiff to the equities of the maker against the original payee, and such equities was a defense to this action. On the other hand, if the note was negotiable, and plaintiff acquired the same in good faith, in due course of business for value before maturity, and without notice of the equities of the defendant, the defenuant could not avail himself in this action of the defenses attempted to be interposed by his amended answer. It therefore follows that the controlling question in the instant case is as to the negotiability of the note sued upon. The authorities are not in harmony upon this question.

out prejudice to any set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration, before due."

In G. S. Maddox v. M. Y. Duncan, Supreme Court of Missouri (Division No. 2) 143 Mo. 613, 45 S. W. 688, 41 L. R. A. 581, 65 Am. St. Rep. 678, it is held:

"One who writes on the back of a note an assignment with a guaranty of payment is an indorser."

In the notes of L. R. A. (volume C) (N. S.) 661, to the said case of Frank N. Ireland et al. v. H. W. Floyd, 42 Okl. 609, 142 Pac. 401, L. R. A. 1915C, 661, we find:

"As said in Hendrix v. Bauhard Bros., 138 Ga. 473, 43 L. R. A. (N. S.) 1028, 75 S. E. 588, Ann. Cas. 1913D, 688: 'On the subject of indorsements like the one here involved, there are two conflicting lines of authority. On the one hand it has been held by the Supreme Court of United States and some inferior federal courts and by the courts of two or three states, that ture of the payee on the back of a note payan entry of a guaranty followed by the signaable to order does not amount to such an indorsement as to carry title and cut off_defenses existing against the payee. * * * soning on which this class of cases is based is The reathat the indorsement is not in blank, but is filled up; that it expresses fully the contract, "An indorsement on the back of a nonnego- and can raise no implication of another. Optiable promissory note, which reads: For value posed to this view are the decisions in a very received I hereby guarantee the payment of large number of states. Numerically, the latthe within note at maturity, or at any time ter class of decisions greatly preponderates, thereafter, with interest at the rate of and we think the reasoning on which they are per cent. per annum until paid. Waiving de-based is sounder than that contained in the mand, notice of nonpayment, and protest, as collateral'-signed by the payee, is sufficient to pass the title to the paper."

In McNary et al. v. Farmers' Nat. Bank, 33 Okl. 1, 124 Pac. 286, 41 L. R. A. (N. S.) 1009, Ann. Cas. 1914B, 248, it is held:

In the opinion in said case is the following from the opinion in Robinson v. Lair, 31 Iowa, 9:

"It is insisted that the writing, on the back of the note, as follows: For value received, we guarantee the payment of the within note, and hereby waive demand, and notice of nonpay ment' does not amount to an indorsement of the note, and does not express an intention to convey the title from payees to plaintiff. We confess ourselves unable to give effect to the contract of guaranty of payment, and waiver of demand and notice, if the payees still intend to retain the title. The writing simply constitutes an indorsement, with an enlarged liability."

In the case of Kellogg v. Douglas Co. Bank, 58 Kan. 43, 48 Pac. 587, 62 Am. St. Rep. 596, the indorsement reads:

"For value received, we hereby guarantee payment of within note at maturity, waiving demand, protest, and notice of protest."

The court in said case said:

"The indorsement to the Chemical National Bank was sufficient. It was placed on the back of the note, and, while it was a guaranty of payment, it was also an indorsement of the note. The guaranty itself would be senseless

class first mentioned.' And, accordingly, it is
held in this case that an indorsement, 'For val-
ue received, we hereby warrant the makers of
this note financially good on execution.' Writ-
ten and signed by the payees on the back of a
promissory note payable to order, which they
have negotiated and delivered for value, is suf-
ficient to transfer title to the note;
made before maturity to a bona fide purchaser,
and if
without notice of any defense, he will be protect-
ed from all defenses which the maker may
have, except those expressly allowed by stat-

utc."

In M. W. Dunham v. Peter L. Peterson et al., 5 N. D. 414, 67 N. W. 293, 36 L. R. A. 232. 57 Am. St. Rep. 556, it is held:

"When the payee of a negotiable promissory note transfers it by indorsing thereon a guaranty of payment, the purchaser is an indorsee, within the rule protecting an innocent purchaser of such paper for value, and before maturity, against defenses good between the original parties."

In said case of M. W. Dunham v. Peter L. Peterson et al. supra, the authorities pro and con upon the question of the negotiability of a promissory note, which has been indorsed as the note upon which this action is predicated, are gathered in the notes to said case, to which reference is made.