Powell v. Morrison, 35 Mo. 244

Powell v. Morrison

35 Mo. 244 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

The plaintiff, Powell, was party to a suit in partition of land, in which suit a judgment was rendered determining the respective interests of the parties ; and the property be*250ing incapable of division was, by order of the court, sold by the sheriff and bought by Pottle & Bailey. The sale was partly upon credit, and Pottle & Bailey gave to the sheriff their notes for the deferred payments, and to secure the payment of them gave a deed of trust of the property bought by them. One of the notes given by Pottle & Bailey was endorsed in blank by the sheriff, who, through a street-broker, sold the same to the defendants, who, at the maturity of the note, received payment of it from the makers, Pottle & Bailey. This suit was brought to recover of the defendants a portion of the proceeds of the note, equal to the plaintiff’s interest in the land, which the note (in part) represented.

The Circuit Court gave judgment for the plaintiff. The note was as follows: “ $7.258.85£. St. Louis, May 28,1857. Three years after date, I promise to pay to the order of James Castello, sheriff of St. Louis county, seven thousand two hundred and fifty eight dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of six per cent, per annum. Moses L. Pottle, Romanzo N. Bailey. May 28-31.” And it was endorsed as follows : “ James Castello, sheriff.”

The deed of trust which secured the payment of the note, described cestui que trust as “ James Castello, sheriff of the county of St. Louis, State aforesaid ; and after describing the property added these words : “ the property herein conveyed being the same property purchased at sheriff’s sale on the 28th day of May, 1857, in the case of Jane Powell et al.;” but did not recite or state in any manner that the notes secured thereby were given for a part of the purchase money of the land sold by the sheriff. The defendants when they bought the note .did not know that the sheriff (Castello) was the seller; they getting it from a broker, without knowing who was his principal. They acquired it for full value, in actual good faith, and without any doubt of their perfect legal and equitable title to the note and its proceeds. There was judgment for the plaintiff. The principal question therefore is, as to the effect of the words on the face of the *251pote, “ sheriff of St. Louis county,” and the endorsement, James Oastello, sheriff.”

It is with some doubt and hesitation that I have come to the conclusion, that those words should be regarded as merely descriptive of the person of the payee and endorser; but there does not appear to be sufficient reason to distinguish this case from those in which the person mentioned in the paper or instrument is also described as trustee, agent, guardian or administrator, and in which those words are held to be merely words of description of the person.

In this view of the case the judgment of the lower court must be reversed and the cause remanded.

Judge Bay concurs ; Judge Dryden dissents.