On Sеptember 11, 1870, one H. J. Lindenbower executed to Candace Calkins his negotiable promissory note for $1,000, payable in three months with ten per cent, interest. The note being assigned to S. 'T. Walkley was allowed by the probate .and common pleas court of Greene county, against Lindenbower’s •estate, and the following minute of such allowance was •endorsed upon it: “Allowed for • $1,041.70 in the fifth class of demands, this twenty-third day of Fеbruary, 1871, E. D. Ott, clerk.”
Credits were afterwards entered on the back of the note, five hundred dollars in April, 1871,. and two hundred and fifty dollars, in August, 1872, and $31.28 in November, 1874. In July or August, 1875, for-one hundred and fifty dollars, paid by Wirt. W. Ellis to Ms wife, Walkley endorsed on the note “pay to the •order of-. S. T. Walkley,” and it was sent by mail to Ellis. In August, 1875, after this endorsemеnt of the note Walkley executed a power of attorney to ■one Joseph Titus, “giving full power to rny said attorney to assign said judgment for thе benefit of Candace Calkins, who in reality is the owner thereof, as it was •only assigned to me for collection.” Titus, as attorney in fact, in Novеmber, 1875, assigned the judgment of
Upon the hearing the court found “that the claim in controversy, • although allowed and сlassified in the name of S. T. Walkley in the fifth class of demands, was the property of the said Candace Calkins. That the said ,. claim in the fall of 1874, was рlaced in the hands of Daniel Ellis, the father of Wirt W. Ellis, deceased, ■ for collection, with instructions to apply the proceeds when collected to the payment of a deed of trust in favor of Joseph Titus and against said Candace Calkins. That afterwards, to-wit: in July or August, 1875, said Wirt W. Ellis purchаsed said claim from said Walkley through his father, and while the same was in Ms (Daniel Ellis’) hands for collection with knowledge of the ownership of. Mrs. Calkins, for which he paid to Mrs. S. T. Walkley, the sum of one hundred and fifty dollars.” The evidence further shows that Daniel Ellis and Mrs. Walkley negotiated by letter the sale and рurchase of the note, Daniel representing Wirt W. That Mrs. Calkins was in Kansas, Mrs. Walkley, in North Missouri, Mr. Walkley, in Illinois, and Daniel and Wirt W. Ellis, father and son, living together in Springfield at the timé. That Mrs. Calkins knew nothing of the transaction until after the transfer had been made, and on learning of it was very much dissatisfied; that Walkley ' had nothing to do with it except; to endorse the note in blank at the request of his wife anl Da.,. el Ellis.
I. Ellis and Ellis objected to Mrs. Calkins’ competency as a witness, on the authority of Angell v. Hester,
II. In fact Walkley was only the agent of Mrs. Calkins, with no real title to the nоte or authority to transfer it. Hence, as was decided the present term in the carefully considered case of Ford v. Philips,
III. It is not necessary to go into the question as to whether or not the lower court has or had any equity jurisdiction, or to cite former decisions on the point. Ellis and Ellis were not hurt, but benefited, by its assumption of such jurisdiction, and cannot complаin that by its judgment they get $201.25, instead of nothing.
IY. It is urged that Mrs. Calkins, having used a
V. Since the instructions asked by Ellis and, Ellis and refused, were framed on the theory that the blank endorsement of the note by Walkley transferred to Ellis, a higher legal claim than the subsequent assignment of the judgment carried to Mrs. Calkins, they require no further notice. I find no error to warrant a reversal, and having reached this conclusion there is no bitterness in the unbidden thought that our decision may soften the twilight of life for the matron whose years are four score and four.
The judgment should be affirmed.