Fitzgerald v. Barker

• Citation: 10 S.W. 45,96 Mo. 661
• Parties: Fitzgerald v. Barker, Appellant
• Decision Date: 01 October 1888
• Court: United States State Supreme Court of Missouri

10 S.W. 45

96 Mo. 661

Fitzgerald v. Barker, Appellant

Supreme Court of Missouri

October 1, 1888

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

Taylor & Pollard for appellant.

George A. Castleman for respondent.

The paper was taken by Fitzgerald in payment of debt and in consideration of surrender of liens and the transfer was for value. Daniels Neg. Inst. [3 Ed.] sec. 827.

Sherwood J. Ray, J., absent.

OPINION

Sherwood, J.

This cause comes here on appeal, and for the third time. 70 Mo. 685; 85 Mo. 13. The petition alleges that on November 2, 1872, Jno. S. Thomas and wife conveyed to defendant certain real estate by warranty deed, wherein they covenanted to warrant and defend the title to said premises against the lawful claims of all persons whomsoever, except against the following named deed of trust and notes on said property, to-wit: Two notes of two thousand dollars ($ 2,000) each, payable two years after date, and eight interest notes for one hundred dollars each, payable respectively at six, twelve, eighteen and twenty-four months after date, all of said notes being made by said John S. Thomas, and payable to his own order (which said defendant assumed and agreed to pay), and the taxes for 1873, said assumption and agreement being duly incorporated in said deed.

Plaintiff, at the date of said deed, was the holder and owner of one of said two thousand dollar notes, and the four interest notes thereon, payable, respectively, in six, twelve, eighteen and twenty-four months from date, all said notes bearing date November 1, 1872, and bearing interest after maturity at ten per cent. per annum. Defendant accepted said deed and entered into possession of said property thereunder and thereby, and by virtue of said assumption and agreement and assignment thereby to plaintiff, became liable to pay said several notes to plaintiff as the holder thereof as they severally fell due. The first of said interest notes was duly paid by defendant to plaintiff at maturity thereof, but the residue remains in his hands unpaid, but although said two thousand dollar note and said three interest notes, due respectively in twelve, eighteen and twenty-four months, have been long since due, yet they and each of them remain wholly unpaid. Wherefore, plaintiff prays judgment for the amount of said two thousand dollar principal note and said three unpaid interest notes due at twelve, eighteen and twenty-four months from date, with interest and costs.

By his answer, the defendant admits that on the second day of November, 1872, John S. Thomas and wife, by their deed of that date, conveyed to this defendant the real estate in said petition described by warranty deed, and that said deed contained an assumption of two notes of two thousand dollars each, executed by John S. Thomas, and eight interest notes of one hundred dollars each; but defendant denies each and every other allegation of the petition. For a further and special defense the answer sets up that Thomas made fraudulent misrepresentations and concealments as to certain mechanics' liens and deeds of trust, which were not recited in the deed from Thomas to Barker, and by such misrepresentations, Barker was induced to accept such deed in settlement of a demand he held against Thomas; "that plaintiff knew of and was privy to said false and fraudulent representations;" that defendant never learned of the falsity of such representations till early in 1873; and that the property conveyed was thereafter sold under the mechanic liens judgment; and that the title as conveyed by Thomas to defendant was wholly defeated thereby. Plaintiff's reply was a general denial.

I. There is not a particle of evidence in this record tending to show that plaintiff was in any way concerned in the alleged fraudulent representations made by Thomas. This being true, it is useless to inquire what frauds Thomas practiced, or what misrepresentations he made as to the non-existence of other incumbrances or liens, since plaintiff had no part or lot in that matter.

II. The testimony shows that he was the purchaser, before maturity, of the notes in suit, and therefore, presumably, the innocent purchaser, and as a result of a purchase in such circumstances, he could not be prejudiced nor his title invalidated by subsequently learning that Thomas had been a fraud-feasor. Hagerman v. Sutton, 91 Mo. 519, 4 S.W. 73; Leavitt v. LaForce, 71 Mo. 353.

III. For this reason, the trial court very properly refused to permit the defendant who had testified to the payment of the first interest note to plaintiff, "to state the circumstances concerning the payment of that note." The very payment of that note was an acknowledgment by defendants that it was due plaintiff, and if there was anything which then transpired, any admissions made by plaintiff, either tacit or express, tending to show complicity between plaintiff and Thomas in hoodwinking defendant, it was the duty of the latter's counsel to make it known, by showing the relevancy of the proposed testimony. This not having been done, the usual presumption which attends the acts and doings of courts of justice must prevail here; for such courts cannot be convicted of error upon mere surmise or conjecture. Aull Savings Bank v. Aull, 80 Mo. 199; Bank v. Wills, 79 Mo. 275; Howell v. Stewart, 54 Mo. 400; Cooney v Murdock, 54 Mo. 349; State v. Douglass, 81 Mo. 231; Stone v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 175.

IV. But...