80 Mo. 646 | Mo. | 1883
This suit was instituted for the purpose of setting aside a certain deed of mortgage executed by one Eisenberg, conveying to defendant Brum a certain threshing machine and horse-power, to secure him in the payment of certain debts therein mentioned. The mortgage was executed on the 10th day of August, 1878, and the validity of it is assailed by plaintiffs on the ground that said mortgage was without consideration, and that when it was executed defendant, Drum, had notice that said plaintiffs had a lien on said property for the purchase money, and that said machine and horse-power were sold by plaintiffs to Eisenberg with the understanding and agreement that their lien was to continue on the property till it was paid for. The petition sets up other matters, which it is
It is contended by counsel for defendant that the evidence does not show a sale by plaintiffs to Eisenberg of the property in question, on the condition that the property was to remain the property of plaintiffs till it was paid for; and that if the evidence establishes that fact, there is no evidence showing that Drum had notice of it, at or before the time he took the mortgage on it.
As to the first of the above points, it must be ruled against the defendant. Mr. Mattingly, a witness on the part of plaintiffs, testified as follows: “ Eisenberg came down on the boat with the machine, and had it landed at "Wittenberg. I asked him upon what terms he had purchased the machine, and he told me he had executed two notes for the purchase money, one payable in August and the other in October. I also asked him if the machine and horse-power were to remain the property of Kingsland, Ferguson & Oo. till the notes were paid, and he said they were.’’ This conversation was in July, 1878. The evidence was objected to on the ground of irrelevancy, it not being shown that Drum was present. This objection was properly overruled. It was competent for plaintiffs to show the terms of sale agreed upon, either by proving the contract by a person present when it was made, or by proving it by the admissions of Eisenberg, a party to it, such admissions having been made before the mortgage to Drum was given, and while Eisenberg was in possession of the property. 1 Greenleaf Ev., § 190. See also 21 Mo. 522 and 444; 36 Mo. 326 ; 24 Mo. 221. It was for plaintiffs to show, as the first necessary step to make out their case, that it was agreed between plaintiffs and Eisenberg that the property in the machine
The only question, then, remaining to a proper disposition of the case is, was Drum a subsequent purchaser in good faith. If he took the mortgage in dispute without notice of the fact that the machine and horse-power were ' to remain the property of plaintiffs, he was a purchaser in good faith; on the other hand, if he took it with notice of that fact, he was not a purchaser in good faith. We are of the opinion that the evidence tends to show that Drum had notice of that fact, and the circuit court so found. Drum was examined as a witness, and it appears from his testimony that he had taken a deed of trust from Eisenberg on all his property, real and personal, to secure him in certain debts therein mentioned, including in said deed forty-one acres of land, the homestead of Eisenberg, and having understood that there was a judgment of $500 against Eisen-berg, and that there was some question about title, he called on Eisenberg for a mortgage on the machine and horsepower, and in this connection further stated as follows:
On his cross-examination, he stated as follows: “ I asked him to give me a mortgage on the machine; he said he did not care to do so, but I insisted and told him I did not consider myself safe the way things stood, and that I wanted further security, and wanted him to give me a mortgage on the machine. He hesitated, as it seemed, whether to do so or not, but finally concluded to do so. I then asked him if there were any notes or writings drawn up about the machine. ITe said there were not that he knew of. I then asked, “Has any one got any hold or claim on this machine?’ and he said‘No.’ I had heard statements in the neighborhood that the machine was Kingsland, Pergu-son & Co.’s.”
It is further shown by the evidence of this witness that after Eisenberg’s death he administered on his estate, and sold all the personal property mentioned in the deed of trust to pay the debts mentioned therein, that the proceeds
On the whole record, we think the judgment was for the right party, and, therefore, affirm it.