71 Mo. App. 224 | Mo. Ct. App. | 1897
In March, 1876, N. E. Eisher made a deed of trust to secure, two notes of $1,000 each, payable to A. W. Lee. In April, 1886, Lee borrowed $1,500 from J. W. Dodd, giving his note for that sum, and assigning the two notes of Eisher as collateral security. None of these notes were paid at maturity. Dodd caused a foreclosure of the deed of trust executed by Eisher on the twenty-eighth of November, 1887, and bid in the property at $1,275. Dodd then agreed that Lee might find a purchaser for the land and have .the benefit of any excess-over the amount due him (Dodd). In pursuance of this contract, Lee induced Byan and Wilson, as purchasers, to give him a set of three notes of $300 each, and another set of three notes of $500 each, and to execute two deeds of trust on said land, on the same date, one securing each set of notes. Thereupon Lee took the deed of trust covering the three $500 notes to the attorney of Dodd, and delivered said notes to him in part payment of Lee’s indebtedness to Dodd, and paid the remainder of such indebtedness in cash. Whereupon the attorney for Dodd directed the trustee in the Eisher deed of trust to make a deed to Byan and Wilson, and handed said deed and the deed of trust from Byan and Wilson securing the notes which had been received on Lee’s indebtedness to Dodd, to Lee, to be taken to the recorder’s office for record. When this transaction occurred Lee concealed
This is an attachment suit against Lee as indorser of the notes waiving demand, notice and protest. The writ was levied upon real estate. A plea in abatement was filed by Lee. He having died before trial, the public administrator appeared and filed a plea in abatement. On the trial of this issue the court excluded plaintiff’s offer in evidence of the abstract of the attachment made and acknowledged by the sheriff and filed by the recorder of deeds, and admitted the finding of facts made in this court in the case of Dodd v. Lee, 57 Mo. App. 167. At the conclusion of the evidence the court sustained defendant’s demurrer and
Counsel for respondent insists that this rule does not prevail where the presence of the omitted parties is