142 Mo. 560 | Mo. | 1898
This action was begun by plaintiff in the circuit court of the city of St. Louis to enjoin and restrain the defendants from selling, under a power of sale in a deed of trust given to secure the payment of a promissory note, certain real property in that city.
A temporary injunction was granted, which upon final hearing was dissolved, plaintiff’s bill dismissed, and judgment rendered against it for costs.
From the judgment plaintiff appeals.
The petition averred that plaintiff owned a certain lot of ground in the city of St. Louis, which it acquired on January 23, 1894, from Louis Berneso and others, who acquired it in February, 1893, from Wm. J.
On October 7, 1895, defendants entered their voluntary appearance to the cause, and filed their answer and motion to dissolve the injunction, wherein they admitted that defendant Vette was the holder of the $3,000 note, and that defendant Dryden was appointed and acting as trustee under the deed of trust in question, and all other allegations of the petition were denied. Affirmatively the answer set forth that defendant acquired the note from the legal holder, before maturity, for value, in good faith, without notice of any supposed equities; and that if any releases of the deed of trust were entered on the records, the same are illegal, as not having been joined in, or authorized by, defendant Vette, the legal holder of the note and deed of trust; that the whole amount of said notéis still due and secured by said deed.
Florida originally owned the property described in the petition and on the same day that the deed of trust in question was executed by Josephine Wellington he conveyed it to her.
On the trial plaintiff showed title to the property to be in it, and also read in evidence the deed of trust which was held by defendant Vette. Also the deed of release, made by Florida and J. V. Boucher, trustee,
For the defendants, defendant Vette was called as a witness. Plaintiff objected to his competency. The attention of the trial court was called to the fact that plaintiff had made him a competent .witness by examining him, by way of deposition, in this case. This was admitted by plaintiff, but it was claimed that plaintiff had not'offered this deposition, and that in taking the same plaintiff had avoided asking the witness questions concerning this particular deed of trust and note held by Yette. The court overruled plaintiff’s objection. The deposition in question was not called for nor read, and the witness testified, in substance, that he was examined as a witness in a deposition taken by Mr. Eliot, attorney for plaintiff, and in that deposition was asked by Mr. Eliot concerning dealings with Florida for some years preceding his death. He identified a paid check of $2,640, dated November 4, 1892, which on that day he paid to Alonzo K. Florida for the $3,000 note in question, he having dealt with Florida for years. This check was in the usual form, on the National Bank of the Republic, St. Louis, signed by Yette, payable to'A. K. Florida, indorsed by the latter, and cleared by the St. Louis Clearing House on November 5, 1892.
Yette received the recorder’s card for the deed of trust and the $3,000 note contemporaneously with the delivery of the check. It took about three weeks to have a deed recorded. He had held the note ever since, and for a while had it in bank for collection. He never knew that a deed of release had been made, and had the note in his possession at that time.
Witness did not remember whether he received an abstract of title at the same time. Florida was in the habit of delivering an abstract, and then, later on, borrowing it, in connection with an effort to sell the
Joseph M. Shortal, the bookkeeper of defendant Yette, thereupon testified that as such he entered this Florida transaction in Mr. Vette’s book. He also identified the check of $2,640, Florida’s indorsement thereon, and the cancellation upon payment. He fully
Defendants then offered in evidence the $3,000 note made by Josephine Wellington, and the indorsement of A. K. Florida, tó which plaintiff did not object. It was protested for non-payment on April 28, 1893, but the notary’s certificate of the protest was excluded on objection.
Defendants rested, and plaintiff in rebuttal proved that good real estate loans, at the date of this transaction, could have been had in the city of St. Louis at the rate of -six per cent per annum, and that Mr. Vette, when asked after Florida’s death how .he had acquired this note, had made the statement that he gave Florida $2,500 in cash for it, but had kept no record of it. The witness, Charles Hewitt, called by plaintiff to prove that Mrs. Wellington had not received full value for the note, admitted, on cross-examination, that Mr. Florida’s standing as a real estate dealer and agent in the city of St. Louis was good in October and- November, 1892; that he never heard anything against him, nor of anything wrong until he died by his own hand.
The first assignment of error is with respect to the ruling of the court in permitting the defendant to testify over the objection of plaintiff as a witness in his own behalf as to the acquisition of the note in question from A. K. Florida who was dead at the time of the trial. It is conceded by plaintiff that defendant was not disqualified as a witness for all purposes, and that he was competent to testify to any facts wit hin his
Complaint is made by plaintiff of the action of the court in admitting in evidence over the company’s objection the so-called “debit book,” kept by defendant Vette in his business. Plaintiff insists that while books of account kept by a party himself or by his clerk are under some circumstances admissible in evidence in his behalf, they are not so admissible when the party himself is disqualified as a witness, unless the action is one for the recovery of a sum or balance due on account. Anchor Milling Company v. Walsh, 108 Mo. 277, was an action to recover over payments alleged to have been made by the plaintiff to the defendant. The facts, as stated by Black, J., who wrote the opinion of the court, were about as follows. Defendant had a contract with plaintiff whereby he was to receive a certain price for hauling wheat and flour to the mill and a certain price per barrel and sack for hauling flour and other mill products from the mill to other points Books
Another contention is that where issues in a case involve the bona ftdes of one in whose possession a promissory note remains, upon allegations to that effect traversed by the other party, the want of consideration in the making of the note, connected with circumstances of suspicion calculated to put the party upon inquiry as to equities, is material to the case, and especially is this so where the proceeding is one in equity, as in this case. It is well settled that when a negotiable promissory note is transferred before maturity, the presumption is that the transferee or assignee takes it in good faith and without notice on his part of secret claims or trusts attached thereto in favor of third parties, or that the note was without consideration. And where the note is secured by a deed of trust, as in the case at bar, the deed of trust passes with the transfer of the note, as incident thereto, free from any and all defenses except such as could be made against the note. ' Under such circumstances the holder is not affected by subsequent notice of the equities or defenses of other parties. Hagerman v. Sutton, 91 Mo. 519; Mayes v. Robinson, 93 Mo. 114; Fitzgerald v. Barker, 96 Mo. 661; Bank v. Rohrer, 138 Mo. 369. Nor will mere suspicion alone that the note is without consideration brought home to the transferee before he acquires the note be sufficient to defeat a recovery upon the note by him. Bad faith alone upon the part of the holder in taking the note will not defeat a recovery by him against the party thereto. Hamilton v. Barks, 63 Mo. 167; Goodman v. Simonds, 20 How. (U. S.) 343; Johnson v. McMurray, 72 Mo. 278; Mayes v. Robinson, 93 Mo. 114. And we see no reason
There remains but one question to be disposed of which we think necessary to consider, and that is the effect of the release of the deed of trust by the trustee therein named, and Florida, the payee of the note, after he transferred it to Yette, upon the rights of plaintiff, the company being an innocent purchaser of the real property covered by the deed of trust after the recording of the release. It is claimed by plaintiff if the lien of a deed of trust is released by the trustee and the payee of a note, a presumption of authority and validity exists in favor of an innocent purchaser of the real property covered by such deed of trust who buys after the release is recorded, and that he who claims the deed of release to be void must prove the facts which result in that conclusion. Conceding this proposition to be true, that presumption was overcome when it was shown that Yette acquired the note for value from Florida before it became due, for the deed of trust by which its payment was.secured passed to Yette as incident to the note, and thereafter neither Florida, nor the trustee Boucher nor both of them together had any power or authority to release the deed of trust without his consent.
Therefore the execution of the release by the trustee' and Florida after Florida had sold the note to Vette was without authority and void. Lee v. Clark, 89 Mo. 553; Hagerman v. Sutton, 91 Mo. 533; Bank v. Frame, 112 Mo. 514; Feld v. Roanoke Inv. Co., 123 Mo. 603; Kelly v. Staed, 136 Mo. 430.
The result is that the judgment of the circuit court must be affirmed, and it is so ordered.