8 Mo. 675 | Mo. | 1844
delivered ike opinion, of the Court.
This was a petition to foreclose a mortgage, by Bryan Mullanphy, suing for the use of John O’Fallon, executor of John Mullanphy, against Mary Reilly.
The Court of Common Pleas of Saint Louis county, in which the petitioner sued, gave judgment for the defendant; and to reverse that judgment, the petitioner, B. Mullanphy, sues out this writ of error.
The defendant pleaded nil debit, and gave notice, that, upon the trial, .she would prove that the mortgagee gave no consideration for the making of the mortgage, and that he obtained the note from the mortgagor without consideration, and by imposing upon her erroneous belief that she owed the amount thereof, when, in fact, she owed him nothing. On the trial of the cause, the plaintiff gave in evidence the promissory note and the mortgage, of which, as no question is made as to their construction, nothing more will be said.
The defendant produced and examined, as a witness, Bryan Mullanphy, the plaintiff. He testified, that he had obtained a judgment against John P. Reilly, in his life-time, for about the amount of the said note, and that said Reilly died leaving said judgment unsatisfied; that the defendant in this case, the widow of the said Reilly, and Mr. Joseph Walsh, frequently said the judgment should be paid; and finally, the defendant, in order to lift the cloud or incumbrance of the judgment from the estate of the deceased husband, and in lieu of said judgment, and the lien which it was supposed to create upon the real estate of the deceased, gave the plaintiff this note and mortgage. It was supposed by the witness, that the lien of said judgment extended over some real estate of the deceased, and was not extinguished by his death. He did not tell them so, but spoke of it with Mr. Joseph Walsh, or perhaps both of them, as a disputed point; gave it as his own opinion that it was so. Walsh replied, by giving Mr. Gamble’s opinion that it was not so, and said that he believed there was no lien or occasion to pay; that Mr. Gamble had told them so, but that the debt ought to be paid, and they would pay it. The witness thought they were not willing to risk the lien. Mr. Joseph Walsh was the person with whom the conversations were chiefly held; and finally, witness urging a settlement, and saying the widow might take her own time, the note and mortgage were brought to him by Mr. Joseph Walsh. When the note, which was payable in two years, became due, suit was brought. Mrs. Reilly sent for the plaintiff, and asked his advice, and wished to let judgment go, to save costs, but witness advised her not to do so, saying the land would sell low, and advised her to employ counsel, and make the best defence she could, and to gain time, when the property would probably sell better.
The witness farther testified, that he had never presented his judgment for allowance in the Probate Court against the estate, but suffered the three years’ time allowed by law for the settlement of the estates of deceased persons to
The defendant then moved the court, in lieu.of instructions, (the same being submitted to the court) to declare the law applicable to the case, arising out of the instructions, to be as follows, viz.: that if the evidence proves that the only consideration for the making of the note and mortgage, by Mary Reilly, was to satisfy a judgment obtained by the plaintiff, Bryan Mullanphy, against John P. Reilly, the husband of the defendant, in his life-time, this was not a consideration on which the said note and mortgage would bind the defendant. The court gave this instruction, and the plaintiff excepted.
The plaintiff then asked five instructions, four of which being nothing more than the negative of that given for the defendant, will be passed over; for if the court decided correctly in giving the defendant’s instructions, it must have decided correctly in refusing those of the plaintiff.
The fifth instruction prayed by the plaintiff was, “ That the said Mary Reilly had a right to pay her husband’s debts, and to give a note for them, and that such a note is a sufficient .consideration to support the mortgage.” Undoubtedly, the defendant had a right to pay her husband’s debts: but the question here is, not about her right to pay, but the plaintiff’s right to recover; and as she does not wish to pay the debts, we are driven back to inquire, whether the note was founded on a good consideration, observing, that the court committed no error in refusing that instruction, as it is altogether immaterial.
The appellee made the plaintiff her witness, and he testified, that, relying solely on this note, and the mortgage for the security of the payment of the debt due from the deceased, he had never presented his judgment against the estate to the Probate Court for allowance. It may be said, then, that at the request of the appellee, the appellant lost his chance to obtain an allowance in the Probate Court, by failing to present it before- his claim was barred by the statute. Any loss or injury sustained by a plaintiff, at the request of the defendant, forms a good consideration to support a promise to pay, provided that promise be fairly obtained, and not by fraudulent representations, &c.
A valuable consideration is one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. (2 Kent’s Comm., 465.) The question is this: Did Mullanphy make a misrepresentation ■ of the law to the appellee, in telling her that his judgment, obtained against the deceased in his life-time, was a lien on the- real estate after his death P It will be recollected, that he, at the same time, told her, that different lawyers entertained different opinions on the subject. This is a question not proper to be here investigated; but it will suffice to say, that this question has been argued before this Court, and has been kept under advisement since the last January term.
The note, then, to secure the payment of which the mortgage has been executed, seems to be for a good consideration, and consequently the court committed error in giving the instruction prayed by the defendant below, appellee here.
The judgment of the Court of Common Pleas must be reversed, and the cause remanded.
