10 S.W. 45 (Mo. 1888), Fitzgerald v. Barker

Citation:10 S.W. 45, 96 Mo. 661
Opinion Judge:Sherwood, J.
Party Name:Fitzgerald v. Barker, Appellant
Attorney:Taylor & Pollard for appellant. George A. Castleman for respondent.
Judge Panel:Sherwood, J. Ray, J., absent.
Case Date:October 01, 1888
Court:Supreme Court of Missouri
 
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Page 45

10 S.W. 45 (Mo. 1888)

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

Page 46

[96 Mo. 662] 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...

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