13 Mo. App. 192 | Mo. Ct. App. | 1883
delivered the opinion of the court.
It appears from the record that, by a deed of trust dated November 1, 1872, John S. Thomas and wife conveyed certain real estate to J. Gr. McClellan, as party of the second part and trustee, to secure George A. Rubleman, party of the third part, upon an indebtedness which is recited thus: “Whereas, the said parties of the first part stand justly indebted to the party of the third part in the sum of two thousand dollars, and for which said parties of the first part have delivered to party of the third part certain promissory notes described as follows, to wit: One note for the sum of two thousand dollars, payable two years after date, and four interest notes for one hundred dollars each, payable respectively in six, twelve, eighteen, and twenty-four months after date, all of said notes bearing even date herewith, executed by said John S. Thomas, for value received, to the order of himself, etc.” This deed was filed for record on November 13, 1872.
The testimony tends further to show that, by deed dated November 2, 1872, Thomas and wife conveyed the same
“ The said parties of the first part hereby covenanting that they will warrant and defend the title to the said party of the second part, his heirs and assigns, against the lawful claims of all and every person or persons whatsoever claiming or to claim the same or any part thereof, excepting against the following named deed of trust notes on the within described'property, to wit: Two notes of two thousand dollars each, payable two years after date, and eight interest notes for one hundred dollars each, payable respectively at six, twelve, eighteen, and twenty-four months after date, all of said notes being made by said John R. Thomas, and payable to his own order, which party of the second part assumes and agrees to pay.”
The plaintiff, claiming as holder of the notes described in this deed, sues to enforce payment against the defendant, by reason of his assumption expressed therein. There was testimony tending to show that the plaintiff did not acquire the notes until after the filing of the deeds for record, and that he then received them from Thomas, in part payment of a debt. The circuit court declared that, on the whole case, as made, the plaintiff could not recover.
This case has been here before. (4 Mo. .App. 105.) It was then held by this court, reversing the judgment of the circuit court, that an assumption by the grantee of mortgaged lands, of the mortgage indebtedness, could be enforced against him by the holder of the mortgage claim, as a personal obligation ; and in effect, that this is true, even though the deed containing the stipulation be not signed by the grantee, though the claimant be not cognizant of the promise, when made, and though there be no actual privity of contract between him and the grantee making the promise. Our judgment was affirmed by the supreme court. (70 Mo. 685.)
No difference in principle can be shown, between .the nature of the obligation assumed by the defendant, in this case, and what it would have been, if he had signed the note as a joint maker. If he had done this instead, would it be pretended that he was released from obligation by virtue of a delay in the indorsement and transfer which were essential to the primary validity of the note? If such an idea prevailed, and it were held essential to the sufficiency of a collateral guaranty or promise, that the instrument should be of full-fledged validity at the time of the undertaking, there would be an end of discounts for accommodation. The custom is universal, that the accommodation indorser, having placed his name on the back of the note, leaves it with the maker to use, by delivery to a third party, at his convenience. Until such delivery, there is no note, of course. Yet the indorser’s contingent liability becomes fixed from the moment of his indorsement, when once the note has passed into circulation.
We can discover in this record no just reason why the defendant should escape liability upon an undertaking voluntarily assumed, by way of payment upon his own purchase price for a valuable tract of land, which he was thus enabled to acquire through a regular conveyance. The judgment of the circuit court must therefore be reversed and the cause remanded.