Negotiable Instruments—Note Secured by Mortgage—Absence of Reference to Mortgage—Notice of Security.—A promissory note negotiable in' form, which contains no reference to a contemporaneous mortgage on land by which it is secured, is not a negotiable instrument as to persons having knowledge that the note and mortgage are coexistent and interdependent.

Id.—Note and Mortgage Part of Same Transaction.—Where a note is secured by a contemporary mortgage on land, both instruments having been executed as a part of one transaction, the note, whether negotiable in form or not is non-negotiable in fact if taken with notice of the existence of the mortgage.

Id.—Foreclosure of Mortgage—Defense of Menace, Duress, and Fraud—Insufficient Pleading—Judgment not Supported by Findings.—In an action to foreclose such mortgage, an allegation in the answer that “said note and mortgage were obtained by the means of menace, duress, and fraud exercised and exerted by the mortgagee • upon the mortgagor, and that said mortgagee was at all said times acting as the attorney of the mortgagor and occupied a fiduciary relation to her,” states a mere legal conclusion, and is wholly insufficient to raise an issue or present a defense based on menace, duress, or fraud. A judgment decreeing the note and mortgage invalid cannot derive support from findings in accordance with such averment.

Id.—Objection to Evidence in Support of Insufficient Allegations. As such allegation tendered no issue upon the question of menace, fraud, or duress, it was not incumbent on the plaintiff in availing itself of this defect, to demur to the answer either upon general or special grounds. It could rest until evidence was sought to be offered concerning them, and then properly make objection to the introduction of such evidence.

Id.—Consideration for Note and Mortgage—Surrender of Contracts for Employment of Mortgagee—Finding Contrary to Evidence. A finding that such note and mortgage were entirely without consideration is contrary to the evidence, when the undisputed testimony is that they were given in exchange for the surrender of certain existing contracts between the mortgagor and the mortgagee, who was the attorney of the former, and another attorney, providing for the employment of said attorneys on certain terms, and that some services were rendered by them and some compensation was due them.

Id.—Undue Influence—Mortgagee Attorney for Mortgagor—Transaction Between Trustee and Beneficiary.—A prima facie ease in support of the defense that the note and mortgage were obtained through the exercise of undue influence would be made out by proof that the mortgagee, prior to and at the time he took the note and mortgage, was acting as the attorney for the mortgagor. This results because the relation of attorney and client is of a fiduciary character and the Civil Code expressly provides in section 2235, that all transactions between a trustee and his beneficiary during the existence of the trust, by which he obtains any advantage from his beneficiary, “are presumed to be entered into by the latter without sufficient consideration and under undue influence.”

Id.—Burden on Trustee to Show Bona Bides of Transaction.—Such provision of the Civil Code does not mean that a trustee may not deal with his beneficiary. But if he does deal with him in such manner as to obtain an advantage—and the obtaining of a note for twenty thousand dollars secured by mortgage is an advantage—the trustee has the burden of showing by evidence that the transaction was fair. He cannot safely rest in an action to foreclose such mortgage without affirmative proof of the facts surrounding the mortgage.

Id.—Entire Want of Consideration not Presumed.—Section 2235 of the Civil Code does not raise the presumption that such a transaction is totally wanting in consideration, but merely that there is no “sufficient consideration” therefor.

Id.—Note and Mortgage Merely Voidable—Terms on Which Cancellation MAY BE HAD—PAYMENT OF CONSIDERATION.—Even if there were undue influence in obtaining such note and mortgage, they would not thereby have been rendered void, in the extreme sense of that term. The transaction would have been voidable merely, and the instruments should not have been ordered canceled, or a recovery on them denied, except upon equitable conditions, such as, for example, the payment to the mortgagee or his assignee of the fair value of the contracts surrendered upon the giving of the note and mortgage.

Id.—Settlement of Differences Between Original Mortgagor and Mortgagee—Beopening Case After Submission to Show—Error in Befusal—Diligence in Discovering Evidence.—In an action by an assignee of the mortgagee to foreclose the mortgage so given to such attorney, it was error for the trial court, after the submission of the case and before its determination, to refuse the plaintiff permission to reopen the case for the purpose of introducing evidence which would have established a complete adjustment and settlement of the differences between the original mortgagor and mortgagee, on which the former based the defenses of undue influence, menace, fraud, duress, and lack of consideration, if there was no lack of diligence on the part of the plaintiff in securing knowledge of such compromise and settlement.