Ryan v. Gilliam

75 Mo. 132 | Mo. | 1881

Sherwood, C. J.

The decree of the circuit court enjoining the sale of the land conveyed by the deed of trust, executed to Andrew Holmes by Matthew Ryan, to secure his notexfor $4,500, may well be upheld on this ground ; that such note was without consideration. The only valid and valuable consideration which could have moved Matthew Ryan to the execution of the deed of trust and the note for $4,500 secured thereby, was the fact of his having signed .as surety the note for $2,012. But this note Ryan swears emphatically he never signed. This positive testi-, mony is not countervailed by the testimony of Woodbridge, wh.o testified that he did not see Matt. Ryan sign the note; that he' can’t say positively that it is his signature, but thinks it is; that he has no recollection of seeing Matt. Ryan sign the note, but could almost swear that he did sign it. Besides, both witnesses were before the court, and even if the testimony were evenly balanced as to the execution of the note, we should in accordance with our prior rulings defer to the finding of the trial court. This has been our custom unless there- was some other evidence or circumstance, or some intrinsic improbability in the testimony which would induce us to arrive at a conclusion at variance with that arrived at by the trial court. Therefore, judgment affirmed.

All concur.