129 Mo. App. 26 | Mo. Ct. App. | 1908
H. H. Clay and T. F. Murray, in 1902, were partners dealing in horses under the firm name of Clay & Murray, in Cedar Palls, Iowa. On January 18, 1902, Douglas S. Gibson, of Monroe county,
“This contract made and entered into by and between D. S. Gibson and H. IT. Olay and T. P. Murray, witnesseth: That the said Gibson having this day delivered a deed to said Clay and Murray for three hundred twenty acres of land in Monroe county, Missouri, in satisfaction of certain indebtedness due from him to the said Clay & Murray, it is agreed that the said Clay & Murray shall within thirty days deliver to the said D. S. Gibson his three certain promissory notes aggregating about twenty-nine hundred dollars, cancelled.
“Whereas the said land conveyed to Clay & Murray is'subject to a certain mortgage or trust deed for twenty-seven hundred dollars with other lands belonging to said D. S. Gibson, now, if the said Gibson shall pay off any portion or all of the said twenty-seven hundred dollars to release his said land, then the said Clay & Murray agree to give to the said D. S. Gibson, or such*29 person as he shall name a trust deed on the 320 acres conveyed to them, but subject to a prior trust deed for $8,500, to secure to him such amount as he shall pay to release his said lands.
“It is further agreed that the rents of the lands conveyed' to the said Clay & Murray shall belong to them from and after the fifteenth day of November, 1904.
“Dated November 12,1904.
D. S. Gibson.
H. H. Clay.
T. F. Murray.”
The three notes, referred to in the collateral agreement, which Murray agreed to deliver to Gibson in thirty days,, represent the debt sued for in this action. Murray had the deed recorded in Monroe county and then deposited it with the Cedar Falls National Bank, and afterwards, to-wit, on November 21, 1905, Clay &. Murray and their wives executed and acknowledged a general warranty deed, leaving the name of the grantee blank, conveying the Gibson land for the express consideration of $17,600, subject to the two deeds of trust mentioned in the deed from Gibson to Clay & Murray, and deposited this deed with the Cedar Falls National Bank. Gibson died in March, 1906, and defendant is the administrator of his estate. Plaintiff presented the notes in suit to the probate court of Monroe county for allowance against Gibson’s estate. In due course the cause was appealed to the circuit court where, on a trial de novo to a jury, the verdict and judgment were for defendant. Plaintiff filed a timely motion for new trial which the court overruled, whereupon plaintiff perfected its appeal to this court.
The defense interposed at the trial was payment of the notes by the conveyance of Roy Gibson and wife to Clay & Murray of the three hundred and twenty acres of land in Monroe county. Plaintiff’s contention is that, that conveyance was made and accepted as security
At the close of the evidence, plaintiff moved the court to instruct the jury that under the law and the