21 Mo. 379 | Mo. | 1855
I. There is no error in this record except in the finding of the facts, which is clearly insufficient. Indeed, there is no finding as to the matters set up in the answer in bar of the plaintiff’s recovery upon the note, which are the only facts put in issue by the pleadings, and, therefore, if these matters constitute a good defence, the judgment must be reversed ; but if they would not avail the defendant, assuming them to be true, the defective finding cannot prejudice him, and is no ground for a reversal. We proceed to examine the several defences relied upon, in connection with the defendant’s proof.
2. According to his own showing, he is not protected by the statute of limitations, and it is very clear that the order of the county court, referred to in the answer allowing the former administrator credit in his administration account for the amount of the note and interest, is no adjudication of the rights of the respective parties to it, so as to conclude either debtor or creditor. It was made in an ex parte proceeding by the former administrator for the purpose of obtaining this credit against the corresponding charge in his inventory, and, in a proceeding between the payor and payee, instituted for the purpose of
3. The real question, however, intended to he litigated in this record, we suppose, is, whether what passed on the part of the father amounts in equity to a valid gift of the note, or, which is the same thing, to an equitable release of the debt.
The transaction was not pleaded as a donatio causa mortis, and the defendant’s own proof shows that it was not a gift of that character. It was intended, if a gift at all, as a present, absolute gift, not as a testamentary disposition — a conditional transfer, to take effect when, and in ease the donee died, which distinguishes the latter from the former species of gift, and is essential to a death-bed donation. Besides, there was no delivery, and without delivery there can be no such gift; and we do not think there is any ground for the opinion that it amounted, in equity, to an extinguishment of the debt, either as a valid, voluntary assignment of it, or as an equitable release. We refer now, for a moment, to the progress and present state of the English law, upon the subject of disposing of dioses in action, contingent rights and possibilities. By the common law, these interests could not be granted to a stranger; but, as Lord Cowper remarks, in Thomas v. Freeman, (2 Vern. Rep. 563,) “the law was not so unreasonable as not to allow them to be released to the debtor or the party in possession.” This rule, however, never found favor in the court of chancery, and a device was resorted to there, in order to get rid of it. The assignment being void at law, as a present transfer, was entertained in equity as an agreement to transfer, which the court would enforce, ( Wright v. Wright, 1 Ves., sen., 411,) and the maxim of the court, “ what ought to be done is to be considered as done,” being applied to the transaction, the beneficial ownership of the debt was, in contemplation of a court of equity, vested by the assignment in the assignee, and both debtor and creditor were, to some extent, converted into trustees for him, the debtor being bound, after notice, to pay to him
This case, of course, is not directly applicable to the assignment of a legal chose in action, but there is no distinction in reason between them, and none, it is believed, has ever been taken in the previous cases. And it may, perhaps, now be considered the doctrine of English equity, that, where a trust is constituted, the court will act upon it in favor of a volunteer ; that a person may constitute himself a trustee for another, without any change of the legal ownership, and that any act done by the beneficial owner of the fund, amounting, unequivocally, to a declaration that an interest in his property
We return now to the facts of the present case, for the purpose of determining whether the matters relied upon constitute a perfect gift of the note, or an equitable release of the debtor. The facts stated in the answer are, that the father, some short time before his death, gave his son the note, and made arrangements to have it delivered to him, which was never done ; and the proof was, that the father, at the time the note was given, loaned his son a hundred dollars, saying he gave it to him, but took the note, so that, if he should ever need the money, he might have it paid back to him ; and that afterwards, and a short time before his death, he told a neighbor he never intended his son should pay the note, and requested him to tell his son to come to his house and have the matter arranged — {to come and get the note, as witness understood it.)
Here, it is to be observed, is no instrument of assignment, nor any formal declaration of trust, nor is there any thing amounting to an unequivocal declaration, even in words only, that the debt should thereby become the property of the son, much less, in words, accompanied by corroborative acts done, or acts omitted, as was the case in McFaddin v. Jenkins, before cited. We think it very clear that every thing here done and said fails to come up to a completed transaction — a perfect gift — but, at the utmost, amounts only to an intended bounty, resting in promise, not yet completed, but to be afterwards executed by a surrender of the note, when the son should visit the father to receive it. What was said by the father, when the note was given, of course could not be received against the effect of the written instrument, but was given in evidence, we suppose, in corroboration of the alleged subsequent gift.
In re Campbell’s estate, (7 Barr, 100,) a childless old man, intending to die intestate, calls for his bonds and notes, in or
In Richard v. Syms, (2 Eq. Cas. Abr. 617,) the mortgagee said to the mortgagor: “Take back your writings, I freely forgive you the debt.” The mortgagor accordingly took them, and it was alleged the mortgagee, at the same time, made a verbal statement to the mother, to the effect that he had intended to forgive the debt. Lord Hardwicke considered that, if the matter were proved, the debt would be extinguished.
In Gilbert v. Wetherell, (2 Sim. & Stu. 258,) the father, upon his death-bed, desired his daughter to bring him his pocket-book, which she did, and he took out of it the son’s promissory note for £10,000, and put it into the hands of the daughter and desired her to burn it, which she immediately did, in his presence. When it was burnt, he said, “ now Thomas owes me £11,000,” (there being other demands against the son,) and this was held to amount in equity to a release of the debt.
But in Tuffnell v. Constable, (8 Sim. Rep. 69,) where the testator had signed a memorandum acquitting the plaintiff of £700 out of £1700, due to him on the plaintiff’s bond, stating, verbally, that in consideration of such release, he had revoked a legacy of £700, given by him to the plaintiff, by his will, and the plaintiff, upon being sued, filed a bill for relief as to
In the present case, there were no words of present acquittance, much less, such words accompanied by acts, such as a surrender or destruction of the note, to relieve the transaction from any uncertainty as to the intention of the party to forgive the debt and authorize the court to declare that the transaction amounted to a release. The whole transaction looked to the future, and was not a present release of the debt.
The result is, under every view of the case, that the judgment must be affirmed, and it is so ordered, with the concurrence of the other judges.