Bick v. Overfelt

88 Mo. App. 139 | Mo. Ct. App. | 1901

BLAND, P. J.

The trial court evidently was of the opinion that the contract of assignment of the notes, was champertous and for that reason could not be enforced by the assignee who held the notes under the champertous agreement. Conceding that the contract of assignment was champertous, the respondent was not a party to that contract, and, for that reason was in no position to avail himself of its illegality. The law presumes the assignee to be the legal holder of the notes and authorized to sue on them in his own name. Banister v. Keaton, 46 Mo. App. 462; Saulsbury v. Corwin, 40 Mo. App. 373; Merchants Bank v. Wright, 53 Mo. 153; Million v. Ohnsorg, 10 Mo. App. 432. And it is immaterial to wbom tbe maker makes payment of tbe notes, if tbe payment would protect bim against tbe claim of payment by another claimant of tbe notes. It is self-evident, that payment to tbe appellant, as assignee of tbe payees, would protect- tbe respondent against any claim that might be made by tbe champertous assignor. In Million v. Ohnsorg, supra, at page 435, speaking of a champertous contract between tbe payee and assignee of promissory notes, in a suit on tbe notes by the champertous assignee, this court said: “We will not bold that tbe maker of a negotiable note can defend against the indorsee and bolder on tbe ground that tbe bolder acquired tbe note after maturity under a champertous agreement to pay costs of suit and retain a part of tbe same collected as a fee.” In Euneau v. Rieger, 105 Mo. loc. cit. 682, it was ruled that a party will not be deprived of relief because tbe contract on which be is prosecuting bis suit is infected with champerty, when be is not seeking to enforce such champertous- contract, and that it is time enough to turn a party out of court when be asks tbe aid of a court to enforce such a contract, citing Bent v. Priest, 86 Mo. 415; Pike v. Martindale, 91 Mo. 268, and remarking that “this is now tbe settled rule in Missouri and is supported by a decided weight of authority elsewhere,” citing numerous cases in other jurisdictions in support.

Such being tbe law, tbe learned circuit judge erred in taking tbe case from tbe jury. Tbe only defenses pleaded are, payment and tbe bar of tbe ten-year statute of limitations. Tbe evidence and instruction should have been confined to these defenses. The judgment is reversed- and tbe cause remánded.

All concur.