78 Mo. App. 364 | Mo. Ct. App. | 1899
Lead Opinion
On August 25, 1893, James M. New-land, Catherine Newland, and the defendants, William W. Broyles and A. M. Broyles, signed and delivered to Joseph A. Knox their joint and several promissory notes, whereby they promised to pay said Knox $500 one day after the date thereof, with eight per cent interest thereon. James M. Newland was the son of Catherine Newland. Mrs. New-land was seized in fee simple of four hundred and six acres of land in Lincoln county; in the fall of 1893 she died testate; by her last will she devised her real estate to her four children, James M. Newland, James A. Carter, N. O. New-land and Mary L. Hall, in equal shares, and appointed James M. Newland and John R. Hall, executors of her will, who duly qualified and administered her estate. By deed dated February 5, 1894, James M. Newland purchased the interest of the other devisees in the real estate and personal property of his mother’s estate, except such personal property as had been already distributed among the heirs. On May 12, 1894, James M. Newland and wife mortgaged the land by deed of trust to the plaintiff to secure a note of $3,000, made by Newland to plaintiff for borrowed money. On the seventeenth of April, 1895, the note of $500 was allowed against the estate of Catherine Newland and put in the fifth class of demands. On October 21, 1896, the note was assigned to William R. Young, without recourse. On July 20, 1896, the probate court ordered the lands devised by Mrs. Newland (four hundred and six acres) sold for the payment of the debts of the estate, including the $500 note and accrued interest. On October 21, 1896, one hundred acres of the land was sold and bid in by the plaintiff, for $1,325.83. This sale was approved by the probate court; the $500 was paid in full and final settlement of the estate was made January 26, 1897. The final settlement showed the receipt of the proceeds of the sale of the lands and the payment of $651.13
Appellants further contend that Newland was not a competent witness, his, mother, one of the makers of the note, being dead. We can not see wherein section 8918, Revised Statutes 1889, can be applied under the facts in this case and in this suit. James M. Newland and his mother were comakers of the note, joint contractors, they did not contract with each other, but contracted together with Knox, who was the opposite or other party to the contract within the meaning of section 8918, supra; the interests of Newland in the contract was not opposed to, but identical with that of his mother, had she been alive. ' That the statute has no application to Newland in the circumstances of this case is supported by Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran,
Rehearing
OPINION ON MOTION FOE EEHEAEING-.
The brief filed in support of motion for rehearing expresses surprise on account of the following view announced by the court in its opinion affirming the judgment, to wit:r “James M. Newland and his mother were co-makers of the note, joint contractors; they did not contract with each other, but contracted with Knox, who was the opposite or other party to the contract, within the meaning of section 8918, Eevised Statutes 1889.” According to the face of the note and of the evidence of James M. Newland, this view is entirely correct. The makers of a note constitute one of the contracting parties thereto, and the payee the other or opposite party, and ordinarily the interests and obligations of the makers are joint and harmonious, not adverse and hostile. Counsel very laboriously endeavor to impress upon us a view of the case which is not supported by the evidence, that is that Mr. Newland contracted with his mother -when they executed the note to Knox. This is not borne out by the face of the note nor by the testimony. They agreed with each other to make a note and borrow money on it to be used in their joint support. To effectuate this object J. M. Newland procured the signatures of the Broyles to the note as sureties for himself and mother to enable them to raise money on it, and to this extent Mrs.Newland and J. M. Newland contracted with the two Broyles. And if this is the contract that was in issue and on trial, then the fact that Mrs. Newland, the éocontractor with J. M. Newland, is dead, did not disqualify J. M. Newland as a witness, in view