Overall v. Ellis

| Mo. | Mar 15, 1862

Bates, Judge,

delivered the opinion of the court.

This is a suit brought to foreclose a mortgage of real estate ' against the mortgagor, the vendee of the mortgaged land and the terre tenant.

The petition states that the notes upon which the suit is founded, which were a part of those secured by the mortgage, were made by Vespasian Ellis, payable to John Riggin, by him endorsed to Thomas J. Payne, and by him to Spalding and Tiffany, and that the plaintiff’s intestate, Mary Payne, (who was then a femme sole with the name of Mary Jones,) purchased the notes, for value, from Spalding and Tiffany. Mary Jones afterward intermarried with Thomas J. Payne.

The answer sets up that the notes have been paid and the mortgage discharged. It also denies that the plaintiff’s intestate ever acquired any right to said notes.

The court directed two issues to be tried by a jury, as follows:

First — Whether Mary Payne, the plaintiff’s intestate, was the owner of the notes in question or either of them at the time of her death.

Second — Whether the notes in question or either of them were fully paid, or otherwise satisfied or cancelled, before the death of Mary Payne, the plaintiff’s intestate.

At the trial of these issues, after the evidence was all given, the court instructed the jury that there was no evidence of any cancellation or payment, or satisfaction of the notes in question.

That instruction disposed of the second issue in favor of the plaintiff.

The court also instructed the jury, that if they find from the evidence that Thomas J. Payne, in November, 1840, was the holder of the notes in question; if he entered into the agreement or arrangement in respect to said notes set out in the writing read in evidence, purporting to be signed by Spalding and Tiffany and Payne; if said Payne, at the time said agreement or arrangement was made, endorsed and de1 livered the notes in question to said Spalding and Tiffany; if said Payne, in December, 1842, was decreed a bankrupt in the District Court of the United States for the District of Missouri upon his petition filed in said court for that purpose ; if, at the time said Payne was decreed a bankrupt in said court, the said Spalding and Tiffany still held said notes under and in pursuance of said agreement or arrangement mentioned in said writings, then the right to the notes in question, after Spalding and Tiffany’s right to hold them ceased, was vested in the assignee of said Payne in bankruptcy, and the jury should find the first issue for the defendant.

The writing signed by Spalding and Tiffany and Payne, referred to in that instruction, declared that said notes should be held by Spalding and Tiffany “ on the following condition: Whereas, Thomas J. Payne heretofore conveyed unto Josiah Spalding and P. Dexter Tiffany, a certain lot of ground in Central St. Louis,” (describing it.) “ Now, if said Payne shall free said lot from the encumbrance and lien of a certain mortgage made by said Payne to Peter Morton, president of the Clinton Bank, or to some one for the benefit of said Clinton Bank, New York, and from the liens and encumbrances of all the judgments which were rendered against said Payne previous to the recording of said deed from Payne to Spalding and Tiffany, then they, the said Spalding and Tiffany, shall account for said notes; but if the said encumbrances shall remain and the said Spalding and Tiffany shall be ejected or evicted from ssid lot, then they, the said Spalding and Tiffany, shall retain out of said notes the consideration money paid by said Spalding and Tiffany to said Payne for said lot, and interest on the amount of said consideration money from the time the same was paid to said Payne, as appears by the date of said deed.”

This agreement vested in Spalding and Tiffany the legal title to said notes, (as the court in another instruction properly informed the jury,) and Payne or his assignee in bankruptcy retained only a right in a certain contingency to require of Spalding and Tiffany an account of said notes, or their proceeds, if collected. Spalding and Tiffany could assign the notes to another person, and their assignee would have good title to them, and right to enforce collection of them. Whether such assignee would be liable to account to Payne or his assignee in bankruptcy for the proceeds of the notes, does not arise in this case. Nor does it appear in this case that the contingency has happened upon-which Spalding and Tiffany might be called to an account.

The instruction given was therefore erroneous in directing the jury to find the first issue for the defendant, if they found the facts as recited in the instruction.

The respondent also contends that the appellant was not compelled by the giving of that instruction to take a non-suit, and therefore his appeal should be dismissed.

We are disposed to discourage the taking of non-suits as tending to protract litigation, but we think that in this case the instruction given so covered the case as absolutely to prevent a recovery by the plaintiff, and he was therefore justified in taking a non-suit.

If the first issue had been found against the plaintiff, obviously he could proceed no further, and the evidence as preserved in the bill of exceptions forbids that under the instructions given there could be any other finding than for the defendant.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.