72 Mo. App. 191 | Mo. Ct. App. | 1897
ACTION ON A PROMISSORY NOTE.
The court, at the request of the plaintiff, submitted the case to the jury on the theory that if the assignment was not recorded and the defendant and the said assignees entered into an agreement to rescind the said trade, by which the said Albert Gallatin was to destroy the said assignment and if in pursuance thereof he did so, then the defendant was liable on the note in suit.
The court, at the request of the defendant, submitted the case to the jury upon the further theory that if it was provided in the agreement to rescind, that the said assignees should, in consideration of the redelivery of the mare or the execution of the said note in lieu thereof, reassign by proper deed said patent right, and that they had not done so, then the said note was without consideration and therefore there was no liability thereon.
The jury found for the plaintiff and judgment was given thereon accordingly. Defendant appealed.
In the first of the above cited cases it is said that: “The true ground on which these decisions are to be supported is that the grantee having voluntarily and without any misapprehension or mistake consented to the destruction of the deed with a-view to revest the title, neither he nor any other person claiming by a title subsequently derived from him is to be permitted to show the contents of the deed by parol evidence.77 /This rule has been adopted and followed by our supreme court in Potter v. Adams, 125 Mo. 118, where it is said, “that the grantee who has destroyed or consented to the destruction of his surrendered deed with the intention of thereby reinvesting the title in the grantor will not be allowed to produce parol evidence of the contents of the destroyed deed. He will be estopped from setting up such deed. In this way,
The evidence of the plaintiff tended to show that both the defendant and his assignees agreed to the destruction of the unrecorded assignment for the purpose of putting the title to the patent right back in the former. This is fairly inferable from all the facts and circumstances -which the plaintiff’s evidence conduces to establish. Now applying these principles to the present case and it is plain that the assignees of the patent would be estopped to set up title under the destroyed assignment.
/It is conceded that the principles governing the transfer of title to real property are applicable to a case like this. It is obvious that the purpose of the parties to the assignment was to “rue” the trade, or in other words, to trade back; and. to accomplish this the defendant restored the horse or the note which was accepted in lieu thereof, and the assignees — G-allatin and Davis — by consent of all, tore up the unrecorded assignment. This it was thought by them restored, the former status, i. e., put the title of the horse, or its accepted equivalent, in the assignees, and the title of the patent light back in the defendant, and according to the principles of law to which we have just called attention this was the effect of the transaction./
We think the plaintiff’s instruction, to which defendant objected, was substantially correct, and it therefore follows that the judgment must be affirmed.