95 Mo. 212 | Mo. | 1888
Joseph T. Zimmerman owed D. Gr. Wilmarth sixteen hundred dollars for borrowed money.
■ The petition goes upon the theory that Orr was the real owner of the judgment or decree. It in substance alleges that Wilmarth desired to buy the land, and that he and plaintiff made an agreement whereby Wilmarth was to have the use and benefit of the judgment, at a sale thereunder, and if Wilmarth became the purchaser of the land, then he was to pay off all prior liens and all of the costs of the suit and sale, and as soon thereafter as he sold the land and collected the proceeds, he would pay to plaintiff the full amount of the judgment and interest; that the land was sold under the agreement on the fourteenth of August, 1876, and Wilmarth became the purchaser, through an agent; that he paid off the prior liens, and then sold the lands for fifty-five hundred dollars. The further allegations are, that Wilmarth took in payment for the land, when sold by him, various notes and mortgages besides one thousand dollars in cash; that, at the time of the sale of the lands by Wilmarth, he resided in the state of New York where he continued to reside until his death, in
1. A contention was made, by way of an objection to the introduction of any evidence, that the petition is insufficient in this, that it does not show that Wilmarth actually used the judgment in the purchase of the land at the sheriff’s sale. The allégation is clear and explicit that he did purchase the land under the alleged agreement, and that is sufficient. No other objections are made to the sufficiency of the petition, and we do not stop to inquire whether this suit can be maintained against the defendant as legatee under the circumstances alleged.
2. Wilmarth employed the attorneys who prosecuted the lien suit, paid their fees and the expenses in enforcing the lien against the land, and there are many other circumstances which go to show that plaintiff had no interest in the judgment; that it really belonged to Wilmarth, and especially that portion represented by the sixteen hundred dollar debt. On the other hand, there is evidence tending to show that Orr held the part of the judgment represented by the two small debts in trust for persons other than Wilmarth ; and that he held one-half of the part represented by the sixteen hundred dollar debt for Harwood, the attorney who prosecuted the lien suit. The other half Orr claims himself, but for what consideration does not very satisfactorily appear. But all these were questions for the jury, and the court seems to have given all the instructions asked by defendant in respect of them.
4. Objection is made to much of tbe evidence of Mr. Harwood, who was tbe attorney for Mr. Wilmarth, because it consisted of communications made by client to attorney; but no such objection was made on tbe trial, or in tbe motion for a new trial, and tbe objection cannot, therefore, be noticed in tbis court.
Tbe judgment is reversed and tbe cause remanded.