63 Mo. App. 431 | Mo. Ct. App. | 1895
This is an action to recover damages resulting from the reissue and fraudulent transfer of a certain promissory note. There was a trial and judgment for plaintiff, to reverse which judgment defendants have appealed.
The evidence adduced at the trial tended to show that on the eleventh day of November, 1886, Michael Gr. Fitzmaurice executed to James F. Judge his negotiable promissory note for $500, due three years after date, and to secure the payment of which Fitzmaurice executed a deed of trust on certain real property in Edina, Knox county, in this state, with power of sale to John W.. Wofford, trustee, which said deed of trust was thereafter duly recorded in the proper county. This deed of trust correctly described the property by metes and bounds, section, township and range, but located it in Jackson county. This error in the location recited in the description of the property being subsequently discovered by Judge, he requested Fitzmaurice to execute a second note and deed of trust in place of the first, accurately describing the trust property, etc. Accordingly, Fitzmaurice, two or three months afterward, executed to Judge a second negotiable promissory note, dated November 12, 1886, for the same amount as the first, payable three years after date, to secure which a second deed of trust was executed, of the same date as the note, to James E. Adams, trustee, on the same property, by correct description
It further appears that thereupon Judge sent the first note, with his blank indorsement thereon, with the deed of trust, back to Eitzmaurice. It further appears, from the testimony of witness Wofford, that, at the instance of Judge, he requested Eitzmaurice to execute the second note and deed of trust, and that it was with some reluctance that the latter did so. It further appears, from the recitals in the second note and deed of trust, that the said note was given for part of the purchase money of the same land described in the deed of trust. It further appears that on the ninth of November, 1886, Judge sold and conveyed' to Eitzmaurice said real property by the description recited in the second deed of trust. No mention is made of purchase money in the first note and deed of trust.
At the time of the trial both Fitzmauriee and Judge were dead, so that we are deprived of the benefit of any light that their testimony might have shed on the transaction between them. Was the second note and deed of trust given in substitution of the first, and, if so, was it the intention of the parties that the former should be. canceled and discharged?
There was no agreement offered in evidence.expressly showing what effect the parties intended the second note and deed of trust should have on the first. Whether the execution of the second note and deed of trust operated to discharge the first, as between the parties, depends upon their intention. As a general rule, payment, or something done and accepted as payment or satisfaction, can only be held to discharge an obligation. Where anything else than payment is accepted as satisfaction, it must appear that such was the intention of the parties. Lippold v. Held, 58 Mo. 213; Thornton v. Irwin, 43 Mo. 153; McDonald v. Hulse, 16
In the circumstances surrounding the transaction between Eitzmaurice and Judge we discover two motives actuating Judge in seeking to obtain a second note and deed of trust. The first note and deed of trust made no reference to the fact that the amount of the debt for which the same was given was for purchase money of the land described in the latter. The reference made in the second note and deed of trust to the purchase money afforded some insight into the reasons influencing their execution and delivery. It is quite probable that one of the purposes of Judge in taking the second note and deed of trust was to get his vendor’s lien recited therein, so that the same might be made a matter of record. And, no doubt, a further purpose was to have the location of the property, supposed to be insufficiently recited in the first deed of trust, sufficiently recited in the second. Now, assuming that the second note and deed of trust were executed to accomplish these two* purposes, the question then is, what effect did* the parties intend them to have on the first note and deed of trust?
The inference may well be drawn from the circumstances of the transaction that it was the joint intention of the parties” to discharge the first note and deed of trust by the giving and accepting of the second. It can not be reasonably inferred that it was the intention of either Eitzmaurice or Judge that the first note and deed of trust should continue to be operative after the execution of the second. Eitzmaurice did not intend.
This case is not analogous to a class of which Burns v. Thayer, 101 Mass. 426, and Walters v. Walters, 73 Ind. 425, are conspicuous types. In those' cases, the first mortgage given was for purchase money of real estate, and a subsequent mortgage was made to give a more accurate description of the property. The question was whether the wife’s right of dower attached when the first mortgage was discharged. It was held that the seizin of the husband was only momentary and did not give the wife dower. Here the first note and deed of trust were given without reference to the vendor’s lien for purchase money. A second note and deed of trust were made to evidence a lien for purchase money, as well as to give a more correct description of
Looking at the transaction for the present as one about which the parties thereto are alone concerned, we can not resist the conclusion that the evidence abundantly proves that the note and deed of'trust, as between them, were canceled and discharged.
In the light of another class of cases, the first note and deed of trust, after the giving and acceptance of the second in substitution thereof, were of no further validity. Iowa Co. v. Foster, 49 Iowa, 676; Hardin v. Bauer, 25 Iowa, 364; Sloan v. Rice, 41 Iowa, 465; Taft v. Boyd, 13 Allen, 84; Hawkes v. Ins. Co., 11 Wis. 188; Ralston v. Wood, 15 Ill. 158.
In the month of August, 1888, the defendant, W. H. Brown, undertook to negotiate an exchange of properties between Eitzmaurice and Esther V. Sweeney. He, according to his own testimony, undertook to act for both of these parties. He succeeded in inducing them to enter into a contract for the exchange. The defendant, Esther Y. Sweeney, at that time sustained to him the relation of fiancee. The contract so entered into between Eitzmaurice and defendant’s fiancee was not produced in evidence. It further appears from the testimony of Brown that the Edina property owned by Eitzmaurice was to be conveyed to his firncee subject to an incumbrance of only $500. It appears further that Brown, on examining the abstract of the title to the Edina property, discovered that the first deed of trust made by Eitzmaurice was an apparent lien thereon. He thereupon called Eitzmaurice’s attention to the matter, who informed him how the
Now, turning our attention to the second note and deed of trust, we find that it appears from the undisputed evidence that Judge, for value, transferred them bo one Eoley, and he to plaintiff. Judge, in May, 1889, at the instance of Eoley, executed a formal release of the first deed of trust, and a few days later a similar release was executed by Eoley to the plaintiff.
It is olear that whatever may have been the equities between Eitzmaurice and Judge, or Sweeney, who, through Brown, obtained possession of the first note and mortgage, and the plaintiff, the owner and holder of the second note under Judge, if Jones purchased the first note of Sweeney, or Brown, as has already been stated, the sale under the first deed of trust to Jones passed the title in fee to the property discharged of the lien of the second deed of trust, or, in other words, such transfer of the first note, and the subsequent sale under the deed of trust given to secure it, cut out and destroyed the plaintiff’s lien on the property. When Judge indorsed and delivered the first note to Eitzmaurice, and received the second note and deed of trust in lieu of it, he had no longer any interest in that
If Brown, as we think the evidence tends to show, received the note from Fitzmaurice for the purpose of obtaining a formal release of the deed of trust by Judge, paying nothing of value for it, with full knowledge of the circumstances attending its execution by Fitzmaurice, and the delivery back to him by Judge, then Brown occupied no other or different attitude in respect to the note as received by him and the plaintiff, the owner of the second note, than did Fitzmaurice. The rights of the plaintiff were in no way imperiled, or affected, by the transaction between Brown and Fitzmaurice. The clear tendency of the evidence is to prove that after Brown obtained.possession of the note from Fitzmaurice, and found that Judge would not execute a formal release of the deed of trust, he conceived the scheme of placing Fitzmaurice in the position of reissuing the note to him, so as to validate it and the lien of the deed of trust given to secure it, not yet satisfied of record. But Brown seems to have known that the note in his hands was as inefficacious and invalid as in those of Fitzmaurice, so that, to overcome this difficulty, it was necessary to get it, then not yet due, into the hands of an innocent purchaser for value. To
The defendants plead and insist that plaintiff is estopped to deny the validity of the first deed of trust by the recitals in the release read in evidence, from Judge to Foley, and from the latter to plaintiff, and, also, in that of Sweeney to Shoff. The defendants plea and insistence can not be sustained. Defendants were not parties to the first two named releases, and one of them was not a party to the other. The rule is elemental that estoppels by deed will not avail in favor of any but parties and their privies in blood, in law,
It must be apparent, from what we have said, that the question of what effect Fitzmaurice and Judge intended the execution and delivery of the second note and deed of trust should have on the first, or, in other words, what intention of the parties do the circumstances of the whole transaction evince, was for the jury to decide.
Many questions of fact arising on the pleadings and evidence, which it was appropriate for the jury to decide, were requested to be submitted by the defendant’s first, second, fourth and fifth instructions, which should have been given. The peremptory instruction given by the court for plaintiff was improper in the case and should not have been given. The defendants were manifestly entitled to go to the jury on the controverted facts in the' case.
The judgment will be reversed and the cause remanded.