Olendorf

Murray, C. J., and Heydenfeldt, J., concurred.

This cause was tried by the Court without the intervention of a jury, and judgment rendered in favor of plaintiff. It is stipulated, that the finding of the facts by the Court shall constitute the statement on appeal.

*482 From this finding, it appears that defendant being the holder of two promissory notes secured by mortgages, indorsed said notes, and assigned said mortgages before maturity, and for a full consideration, to one Palmer, since deceased, of whom plaintiff is executor.

It does not appear that the notes were presented to the payee at maturity, and notice of demand and non-payment given to defendant.

Defendant, in conversation with a third party after the maturity of the notes, said, “ that the fact of notice not having been given at a proper time would make no difference with him—that he would do what was right.” Upon these facts, the Court below decided, that “ no presentment and notice of non-payment was necessary in order to bind defendant; he, having taken security in advance, is liable as principal.”

This conclusion of law, from the facts found, is clearly erroneous. The mortgages were taken to secure the…