Page:Federal Reporter, 1st Series, Volume 6.djvu/145

 NAT. BANK 0¥ KISING SUN, IND., V. BEUSH. 133 �and, after the latter had indorsed the note in blank, John G. Brush took the same, and delivered it and the mortgage to the plaintiff, and received the money ; and that William T. Brush indorsed the note for no other purpose than to enable the plaintiff and John G. Brush to carry out their agreement. �The second paragraph is the same in substance as the first. There is a demurrer to the first and second paragraphs of answer. It is insisted, in support of the demurrer, that by his separate answer William T. Brush seeks to contradict or vary his eontract of indorsement by paroi evidence, The facts stated in the first and second paragraphs of the answer are admitted to be true, and they show that William T. Brush indorsed the note solely for the eonvenience of the bank and John G. Brush, and without consideration. WiUiam T. Brush was the mere instrument of John G. Brush and the bank, to enable the latter to loan its money on mortgage security. It was well understood by ail the parties that William T. Brush was not interested in the loan, and that he was not an ordi- nary accommodation indorser. The money was not loaned on the faith of his signature on the back of the note. He acted as the trustee of the bank, if he held the note and mort- gage at ail. The act of congress prohibited national banks from loaning money on mortgage security, and it was supposed that prohibition might be evaded by executing the note and mortgage to William T. Brush, and having him assign the same to the bank. As between the parties to negotiable paper and others having notice, the want of consideration may be shown. This is not a suit between an innocent holder of the note for value and the indorser. The indorser should be allowed to prove the facts stated in his answer, if he can, not to contra- dict or vary the terms of the eontract of assignment, but to show that he became a party to the paper without any con- sideration whatever. Barton v. Martin, 52 N. Y. 575; Ross V. Espey, 66 Pa. St. 487. Having thus induced William T. Brush to indorse the note, it would be upholding a fraud to allow the bank to hold him liable as an indorser. �Demurrer overruled. ��� �