64 Mo. App. 39 | Mo. Ct. App. | 1895
Plaintiff replevied certain household furniture from defendant before a justice, claiming title as the holder of eight promissory notes for $17.50 each, due respectively one, two, three, four, five, sis, seven, and eight months after date of the first note, and all secured by a chattel mortgage upon the property replevied, made to one Miller, who indorsed the notes in blank and delivered them and the mortgage to plaintiff. On a trial before the justice plaintiff had judgment. Defendant appealed to the circuit court, and on a trial there recovered judgment, from which plaintiff appealed to this court.
On the trial in the circuit court, plaintiff read in evidence said chattel mortgage and notes and the returns of the constable on the order of delivery, and rested. Thereupon Christian J. Mohr gave evidence tending to show that the mortgage in question was made by himself and wife upon their household effects to secure ten notes of $17.50 each, aggregating $175; that only $125 was paid upon the giving of these notes; that the mortgagee, Miller, stated at the time that .the
Plaintiff’s cross-examination evoked unsatisfactory and uncandid replies as to her business relations with said Miller; it was also somewhat contradictory as to whether she saw the indorsements on the present notes at the time she claimed to have the transaction of purchase with Miller. She further stated that the purchase came from a visit by her to Miller’s store to see some carpets; that he was a second-hand dealer “in connection with his loan business; ’ ’ that at this time she scanned over the mortgage which was shown to her, and satisfied herself it was a good security for $150 investment; that in a few days thereafter she consummated the trade and received the notes, which were then indorsed, and the mortgage; that she asked no questions as to the nature of the transaction for which the notes were given; that she knew nothing of Miller’s financial condition, but took his oral guarantee for the mortgage.
Appellant complains of the giving by the court of the following instruction at the instance of the respondent :
1. “The jury are instructed that, if you find from the evidence that the notes, to secure which the mortgage in evidence was given, were given for a sum of money borrowed by Mohr from Miller,, together with such an additional sum, representing interest on the sum actually borrowed, as would exceed the rate of eight per cent per annum on the sum actually borrowed, then such notes were usurious and their payment would be the payment of usury; and before the plaintiff can recover under such circumstances she must prove, and the. burden is upon her to prove, that she purchased the notes assigned to her, in good faith, before their maturity and for value.
2. “If the jury believe from the evidence that the plaintiff on or about May 1, 1894, bought of G-eo. W. Miller the nine (9) notes in controversy, and read in evidence, before the maturity of any of same, and paid a valuable consideration therefor, and received said notes and the mortgage securing same, read in evidence, and at the time of said purchase did not know that said notes were given by the makers thereof for money borrowed at a rate of interest exceeding eight per cent per annum, then your verdict tdll be in favor of plaintiff.”
Appellant further insists that a peremptory instruction to find for her should have been given.
It is clear that appellant made a prima facie case of right to possession of the mortgaged effects, when she gave in evidence the mortgage embracing the property replevied and the notes secured by it duly indorsed ; for the mortgage is a mere incident to the indebtedness secured by it, and passes with the transfer of such indebtedness. Hagerman v. Sutton, 91 Mo. 519. Under this rule it may be said, as contended by appellant, that after the adduction of this evidence appellant was presumptively entitled to recover.
It is next insisted by appellant that the court erred, at this stage of the' trial, in permitting the usurious character of the notes secured by the mortgage to be shown before requiring evidence tending to show that appellant was not a bona fide holder for value before maturity. This position rests upon a misapprehension of the proper order of proof. It is the well settled rule in this state that the maker of a note is entitled to meet the prima facie case, made for an indorsee by the production of the paper duly transferred, by evidence showing that the note had its origin in. fraud or ille
Appellant’s third complaint is that by the first instruction given, supra, the jury were told in effect that, after proof by defendant of the illegality in the inception of the note and the mortgage, the burden rested upon the plaintiff to prove her purchase of the note, in good faith, before maturity and for value. There is no merit in this objection. The instruction was drawn in strict accordance with the rules of the law governing proof in cases like the present, as shown above. Besides, the instruction, as to the matter complained of, is a literal copy of instruction number 3, which was expressly approved in Hamilton v. Marks, supra (63 Mo. 170, 171). The case cited to support appellant’s contention in this respect is Carson v. Porter, 22 Mo. App. 179, wherein it was said that the use of the words,
Lastly, the objection urged by appellant is the refusal by the court of an instruction ‘ ‘practically to the effect that plaintiff was entitled to recover. ’ ’ Such an instruction should not have been given in this case. Whether appellant was a bona ficle purchaser for value, before maturity, of the notes in suit, or whether she was merely acting for Miller by posing as. an innocent purchaser so as to enable him to foreclose in her name the mortgage taken for the security of the notes which' would be void in his hands under the statute, wholly depends on the belief by the jury in the testimony of appellant and Miller, both of whom were directly interested in the event of this replevin suit, she as the alleged purchaser, and he as the guarantor, according to her. testimony, of the mortgage, and the cross-examination of both of whom, even when read in type, shows nothing calculated to prepossess the triers of the fact in favor of the candor and veracity of the witnesses. The burden of proof to establish by general evidence that the notes were acquired in good faith rested upon appellant after the showing of their usurious character by respondent. The jury, therefore, were entitled to disregard her testimony to establish this issue, even if it was uncontradicted, since it was the evidence of interested witnesses, and especially since it was impeached upon cross-examination. Johnson v. McMurry, supra; Kenney v. Railroad, 80 Mo. 573; Cannon v. Moore, 17 Mo. App. 102; Boone v. Railroad, 20 Mo. App. 232; Rapalje on Witnesses, see. 183; Johnson v.
It is finally suggested by appellant that, inasmuch as she would be entitled on a suit in the notes in controversy to recover the balance due after excepting the usury and applying credits for all payments, she should be entitled to that extent to enforce the mortgage in the present action. It is sufficient to say that the act rendering mortgages illegal and invalid for usury permits no scaling of the mortgage to correspond with a right to recover on the note, but in express terms does away with the mortgage altogether as a muniment of title or lien in favor of a person subject to the provisions of the act. The present action merely determines that the mortgage on the personal effects of defendant is not enforcible by appellant. It does not prevent the recovery by appellant in an independent suit upon the notes under the first section of the act of 1891, page 170.
Finding no error in the judgment of this case, it will be affirmed.