Burrows v. Alter, 7 Mo. 424

Burrows v. Alter

7 Mo. 424 | Mo. | 1842

Opinion of the Court, delivered by

Scott, Judge.

The plaintiffs, as endorsers, brought an action of assump-sit on a bill of exchange against the defendants, as drawers of the same. The defendants pleaded a release. The plaintiffs replied that the release was obtained bj fraud, covin, and misrepresentation, on which issue was joined. On the trial the plaintiffs obtained a verdict and judgment, to reverse which this writ of error is prosecuted.

^appears from the evidence that the defendants, being in failing circumstances, made an assignment of their effects for the benefit of their creditors. The deed of.assignment contained a clause by which ail creditors claiming the benefits of its provisions, were required to release their debts a'nst pne defendants. The plaintiffs became a party to the assignment by executing the same. It is admitted that under the decisions of this court the deed of assignment was vojd as to creditors. Under the plea that a deed was ob- , , . , . . . , tamed by fraud, covin, and misrepresentation, the only evidence °f fraud that can be received is-that in relation to the execution of the instrument, as that the party was illiterate, and the deed was misread to him, or that another deed than that intended to be executed was substituted. But fraud in *425the consideration, ora partial or total failure of consideration, is no defence to an action at law on a bond. The seal itself imports a consideration. Relief must be sought in equity. Don v. Munsell, 13 John ; Jackson v. Hill, 8 Cowen; 6 Munford. 358; Montgomery v. Tiffin, 1 Mo. Rep. It has been repeatedly remarked that the precedent of a plea in Chitty, asserting a doctrine contrary to this principle, is without'authority, and is not sustained by the cases cited in support of it. '

The validity ?-(iee<i assignment cannot be th'ose* credit ors who vo-witlfful}’ ^ knowledge of stances, be-neal&ough may be void creditors who

We cannot imagine on what ground it can be said the release pleaded in bar, was fraudulently obtained by the . , r : J , , , tendants. ihe deed of assignment was not absolutely void: it was only voidable by the creditors and purchasers of the party making it. Crocket v. Wright, 7 Missouri Rep.; 15 John. R. 571; 5 Cowen, 547. Here the plaintiffs so far from avoiding the deed, voluntarily assented to it, with their eyes open, and iully apprised oi all the facts, they executed 11.. How can it be said that the deed was made to hinder, delay,to or defraud them, when they voluntarily became parties to same. That the deed is void as to those who did not assent to it, is no reason why its validity should be questioned by those who executed it. Hone v. Henriquez, 13 Wendell, 240. The court does not wish to be understood as giving any opinion as to the right of the plaintiffs to relief in equity. It simply maintains that at law the party is precluded from denying the validity of the release contained in the deed of assignment to which he deliberately became a party. *

Judgment reversed.