38 Mo. 213 | Mo. | 1866
delivered the opinion of the court.
It will be unnecessary to give a summary of all the facts in this case, or to notice in detail all the points made. The whole transaction, from the endorsement of the notes by Allen, in 1857, to Valentine & Co. to the final close of the . business after the execution of the second deed of trust by Alexander, must be taken into consideration to form a correct conclusion as to the legal merits' and claims of the parties. The first deed of trust was made to secure and save harmless Allen from all loss which he might sustain or incur in consequence of his endorsements, and the notes now sued on, it appears, were part of the notes secured in the said deed. When they were in the hands of Lucas & Co., they operated as en equitable assignment, pro tanto, of the property recited in the deed of trust, in favor of Lucas <fc Co.; and if they were paid off and discharged with the money of Allen, Lucas & Co.’s equity then enured to him, independent of his being the original cestui que trust. The plaintiff having received the notes when they were past due, was put upon inquiry, and will be considered as having taken them with full notice of all the infirmities or equities which attached to them.
The first instruction given by the court, on motion of plaintiff, was clearly wrong. It loses sight of the fact, that the plaintiff received the notes as dishonored, and took them with notice of all legal defences which would defeat a recovery ; and it singles hut certain facts, and tells the jury, if they believe those facts to be true, prima facie the plaintiff is entitled to a verdict, when there was a large array of testimony conducing to show an opposite state of things. For a court
The next inquiry is, the effect to be ascribed to the acknowledgment of satisfaction on the margin of the record, made by Alexander on the first deed of trust. He describes himself as assignee of Allen and others, cestui que trusts in the deed, and acknowledges to have received full satisfaction of the deed of trust, and then releases the property from all lien on account of the conveyance. This acknowledgment of satisfaction and release of the lien of the property is made under seal. It is contended by the counsel for the defendants, that the release, being under seal, not only destroys the lien on the property, but also imports an absolute extinguishment of the debt on which the deed of trust was founded, and that parol evidence is inadmissible to rebut this presumption or conclusion of law; whilst, on the other hand, it is ai'-gued, the only effect of entering satisfaction on the record is to extinguish the encumbrance on the property in favor of the real owner, and that the debt is not thereby discharged.
The statute does not require that the entry or acknowledgment of satisfaction should be made under seal, but there is nothing to prohibit a party from resorting to that inode. Where a bond is made not in accordance with the statute, it may still be good as a common law bond, and will be governed by the legal effects and incidents pertaining to it by
We see no error in the ruling of the court in excluding the depositions of Valentine and Dunlap ; they pertained to matters anterior to the assignment, and were incompetent. The judgment is reversed and the cause remanded.