86 Mo. App. 108 | Mo. Ct. App. | 1900
This is a suit in replevin brought jointly by D. K. Mayer, curator of Charles Palmer, and E. S. Stewart, curator of Stanley Palmer, minors, to recover of the defendant bank a certain promissory note for $800, executed1 in the year 1887 by one Larkin, and payable three years after date with 8 per cent interest to S. C. Palmer curator. The facts, which are practically undisputed, may be stated as follows: In the year 1884, S. 0. Palmer was appointed curator of four minor children — Robert, James, Charles and Stanley Palmer — and as such took charge of several thousand dollars in property and money belonging to his ward's. The curator seems to have kept all the money so received, as well as that belonging to him on his own private account, on deposit in the bank to his individual credit, checking it out from time to time as needed or loaned. In 1887, the curator loaned $800 to Larkin and took therefor the note in question, secured by a deed of trust on real estate. The note was made payable to “S. C. Palmer, Curator.” In 1892 and 1895, two of the minors becoming of age, S. C. Palmer made final settlement on their account and paid them respectively their portions of the estate.
In November, 1898, S. O. Palmer borrowed $2,000 from the defendant Columbia Savings Bank, and among other securities turned over to the bank the Larkin note, indorsing on the back thereof “S. C. Palmer, Curator.” The Larkin note was then past due and the interest thereon had. been paid from year to year. Subsequently, S. C. Palmer became financially embarrassed, and in March, 1899, was removed from the curatorship of Charles and Stanley Palmer and these plaintiffs were appointed in his stead. The retired curator being unable to account for the large amount of money which he owed his wards, his successors, these plaintiffs, demanded of the defendant bank the possession of
On this state of facts the court, trying the case without the aid of a jury, rendered' judgment for plaintiffs for the recovery of the Larkin note or its value, fixed at $1,102, at the plaintiff’s option. From this judgment defendant has appealed.
I. The real controversy here is between the defendant bank and the securities on the curator’s bond of S. 0. Palmer. For conceding the Larkin note to have been the property of the Palmer children, then unless it shall be recovered in this suit it will be added to the deficiency of said curator and his bondsmen must make it good.
As stated in plaintiff’s brief, the question is. Did- the deposit or transfer of the note in controversy, under the circumstances before mentioned, convey a good title thereto in the defendant — conceding, as it must be under the evidence, that the bank took the note, in actual good faith and for value parted with at the time? There is no evidence whatever that the bank’s officers had any knowledge that the note was trust property, unless notice be imputed from the fact that the instrument was made payable in terms to “S. C. Palmer,” curator and when delivered to defendant was indorsed in blank on the back thereof “S. 0. Palmer, curator.”
Notwithstanding there is some confusion in the decisions, we think the overwhelming trend of authoxdty favors the proposition that the mere addition of the words “curator” and the like to the name of the payee and indorser does not
The difficulty, however, of sustaining defendant’s claim to the note in controversy, comes from the admitted fact that when said S. C. Palmer, curator, assigned the instrument to defendant, it was then past due. This- being so, we must then hold, as decided by our Supreme Court, that defendant took no better title than was held by said S. C. Palmer its assignor. Turner v. Hoyle, 95 Mo. 337. Substituting the name of the wrongdoing trustee of the case in hand in place of the one mentioned in the foregoing decision and the court there would say:
“The defendant in this case, having received the note in controversy long after it became due, acquired, by virtue of its indorsement and delivery to it for value by Palmer, no higher or greater title than Palmer had; it stands in the shoes of its indorser. The beneficiaries of the trust are the real owners of the note. Palmer had no such title as could be set up by him against them, or the plaintiffs in this case in whom is vested the legal title -to said trust for them, in an action for its recovery, and defendant by the transfer to it acquired no such title as could defeat plaintiffs’ action,” etc.
We have examined the case of Young Men’s Christian Ass’n v. Bank, 179 Ill. 599, cited by defendant’s counsel, as well as the authorities there cited, and while a different rule is there announced, we yet feel bound to follow the decision of our own Supreme Court
The judgment of the circuit court must be affirmed.
