Wiener v. Peacock

Decision Date22 May 1888
PartiesHENRIETTA WIENER, Respondent, v. EBER PEACOCK, Administrator, Appellant.
CourtMissouri Court of Appeals

Appeal fro the St. Louis Circuit Court, HON. GEORGE W. LUBKE, Judge.

Reversed and remanded.

KERR & TITTMANN, for the appellant: The penalty or forfeiture sued for abated by the death of Dr. Rose. An action for the recovery of the statutory penalty under sections 3311 and 3312, Revised Statutes, is a penal action. 2 Jones on Mortgages [2 Ed.] sec. 990; Stone v. Lannon, 6 Wis 497. An action for a penalty or forfeiture created by statute does not survive. Bank v. Collins, 5 Hun 209; Stakes v. Stickney, 96 N.Y. 323; McBratney v Railroad, 17 Hun 389; Little v. Conant, 2 Pick 527; O'Donnell v. Seybert, 13 Serg. & R. 54; People v. Tioga C. P., 19 Wend. 76, 77; Wade v. Kalbfleisch, 52 N.Y. 287; Johnson v. Elwood, 82 N.Y. 362; Hegerich v. Keddie, 99 N.Y. 258, 262; Snyder v. Railroad, 86 Mo. 617. The subject is well illustrated in the various cases which hold that an action for breach of promise of marriage does not survive. Stebbins v. Palmer, 1 Pick. 171; Smith v. Sherman, 4 Cush. 408; Kelley v. Riley, 106 Mass. 339; Wade v. Kalbfleisch, 52 N.Y. 282; Hayden v. Vreeland, 37 N.J. Law (8 Vroom), 372; 3 Williams on Executors [6 Am. Ed.] 1728, 1830; Schouler's Executors and Administrators, sec. 370; Higgins v. McNally's Adm'r, 9 Mo. 494; Jewett v. Weaver, Adm'r, 10 Mo. 234; Froust v. Bruton, Adm'r, 15 Mo. 619; Stanley v. Vogel, 9 Mo.App. 98; S. C., 78 Mo. 245; Town v. Rhomberg, 78 Mo. 547, 549. The note of July 27, 1881, is either a renewal of the note of July 27, 1880, or the latter was reissued and redelivered as collateral to the former. In neither case is the plaintiff entitled to a release of the deed of trust. Leppold v. Held, 58 Mo. 213; Christian v. Newberry, 61 Mo. 446; Darst v. Gale, 83 Ill. 137, 142. Upon the undisputed facts of the case, Dr. Rose was not liable to a penalty for failing to release the deed of trust. He had substantial grounds for so refusing, and honestly entertained the opinion that his unpaid note was secured by the deed of trust. Plaintiff, too, was estopped from asserting the contrary. 2 Jones on Mortgages [2 Ed.] sec. 991; Burrows v. Bangs, 34 Mich. 304; Haubert v. Haworth, 9 Phila. 123; Marvin v. Vedder, 5 Cowen 674.

KLEIN & FISSE, for the respondent: The action against Dr. Edward Rose did not abate by his death, because the action itself survived or continued. Rev. Stat., secs. 96, 97, 3663; Higgins v. Breen, 9 Mo. 497; James v. Christy, 18 Mo. 162; Baker v. Crandall, 78 Mo. 584; Bliss on Code Pleadings [2 Ed.] secs. 39, 43. The words of the statute embrace every wrong done to the property, rights, or interests of another; these are to be considered disjunctively, and to include all wrongs whereby the aggrieved party is injured, except those named and excepted in section ninety-seven. Haight v. Hayt, 19 N.Y. 464. There was no evidence that the note of July 27, 1881, was a renewal of the note of July 27, 1880, which was paid at maturity. The instructions given by the court put the case fairly to the jury upon the evidence adduced. The evidence showed conclusively that the note of July 27, 1880, was paid July 27, 1881, and that Dr. Edward Rose received the money. He nevertheless claimed a right to hold this note as against the plaintiff and her property. It is plain that to give him such right he must show some act on her part. The answer of the defendant was a general denial. If Dr. Rose had any substantial ground for refusing to enter satisfaction of the deed of trust, other than the one that the note had not been paid, this would be matter of affirmative defence. 2 Jones on Mortgages [3 Ed.] sec. 991.

OPINION

ROMBAUER P. J.

Our statute provides that if any mortgagee, trustee, or cestui que trust, his executor, administrator, or assignee, receive full satisfaction of any mortgage or deed of trust, and do not within thirty days after request and tender of cost acknowledge satisfaction on the margin of the record, or deliver to the person making satisfaction a sufficient deed of release, he shall forfeit to the party aggrieved ten per cent. on the amount of mortgage or deed of trust money, absolutely, and any other damages he may be able to prove he has sustained, to be recovered in any court of competent jurisdiction. Rev. Stat., secs. 3311, 3312.

In July, 1880, the plaintiff, then the wife of Hermann Wiener, held as her separate estate a lot in the city of St. Louis, the legal title whereof was vested in her husband subject to her written direction under seal as to its disposal by him in any manner, and being so possessed, at said date conjointly with her husband executed a deed of trust conveying the premises to one Hammel as trustee to secure the payment of two principal notes, one for one thousand dollars, payable one year after date, and one for four thousand dollars, payable three years after date, and also interest notes; all of which notes prior to their maturity came into possession of the defendant's decedent, Edward Rose, and all of which were paid to him at their respective maturities, or shortly thereafter.

In July, 1881, and three days prior to the maturity of the one thousand dollar note herein mentioned the plaintiff and her husband executed, endorsed, and delivered to Edward Rose another note for one thousand dollars, being a duplicate of the note mentioned in the deed of trust in every respect, except that it bore date July 27, 1881, and was payable to their own order, whereas the original note bore date July 27, 1880, and was payable to one Krekeler, from whom the decedent acquired it. The original note of one thousand dollars was also either retained by Rose after its payment, or else if it came into the possession of the makers was redelivered to him; but whether one or the other, or whether if redelivered, it was done by the consent of plaintiff, rests upon mere surmise.

In May, 1886, Hermann Wiener, being then dead, and all the notes secured by the deed of trust paid as above stated, the plaintiff, through her agent, demanded of Rose a release of the deed of trust, tendering the statutory fee. Rose refused to make the release, claiming that the original note of one thousand dollars was still held by him as collateral security for the note of a corresponding amount bearing date July 27, 1881, and plaintiff was entitled to no release until said note had been fully paid. Plaintiff thereupon instituted this suit to recover from him the statutory penalty under section 3312, above recited. Rose died during the pendency of the suit, and his administrator being substituted, the plaintiff recovered against the latter under the instructions of the court a judgment for five hundred dollars and costs, from which the administrator prosecutes this appeal.

The defendant's exceptions may be briefly stated as follows: (1) That the court erred in not instructing the jury as requested, that the penalty sued for abated by the death of Rose; (2) that the note of July 27, 1881, was either a renewal, or accompanied with a reissue of the one of July 27, 1880, and plaintiff is not entitled to a satisfaction of the deed in either event; (3) that the court's instruction as to the burden of proof whether the note was reissued with plaintiff's consent was erroneous; (4) that upon the undisputed facts the defendant was liable to no penalty, having substantial grounds to believe that the one thousand dollar note was still a subsisting lien upon the land.

I.

Our statute (Rev. Stat., sec. 96) provides: " For all wrongs done to the property, rights, and interests of another for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and after his death against his executor or administrator in the same manner and with the like effect in all respects as actions founded upon contracts."

Section 97: " The preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator."

The defendant contends that in one sense the statute is not broader than the statute of 3 Edw'd III., and that even under our statute an action for such torts only survives from which the decedent or his estate has derived some pecuniary benefit. This view derives countenance from the decisions in New York, from the statutes of which ours is apparently taken. In Hegerich v. Keddie, 99 N.Y. 263, RUGER, C. J., in construing the statute, says: " The language and structure of these sections would seem to repel the idea that the...

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5 cases
  • Gilkeson v. Missouri Pacific Railway Co.
    • United States
    • Missouri Supreme Court
    • 1 d4 Julho d4 1909
    ... ... Snyder v. Railroad, 86 Mo. 613. The penalty ... given by statute for failure to satisfy a mortgage has also ... been held to survive. Wiener v. Peacock, 31 Mo.App ... 238. The statutory action given against the owner for injury ... done by a slave to person or property survived ... ...
  • Davis v. Johnson
    • United States
    • Missouri Supreme Court
    • 16 d4 Março d4 1933
    ...Co., 114 Mo. 309; Kingsbury Exrs. v. Lane, Exrs., 21 Mo. 115; Brewington v. Admrs., 31 Mo. 38; Marks v. Hardy, 86 Mo. 232; Wiener v. Peacock, 31 Mo.App. 238. Hays, J. This is a proceeding under Sections 63-66 of the Revised Statutes 1929, for the discovery of assets, said to belong to the e......
  • Henry v. Orear
    • United States
    • Kansas Court of Appeals
    • 4 d1 Janeiro d1 1904
    ...answer here being merely a general denial, defendant had no right to make it, or to ask an instruction upon it. In the case of Wiener v. Peacock, 31 Mo.App. 238, ROMBAUER said: "We deem it unnecessary to express an opinion on defendant's fourth point, since his answer is a mere general deni......
  • Magee v. Burch
    • United States
    • Missouri Supreme Court
    • 8 d1 Fevereiro d1 1892
    ... ... Johnson v. Johnson, 81 Mo. 331; 2 Hilliard on ... Mortgages [Original Ed.] sec. 45, pp. 172, 173; Lippold ... v. Held, 58 Mo. 213; Wiener" v. Peacock, 31 ... Mo.App. 238; 1 Hilliard on Mortgages [4 Ed.] secs. 3, 4, pp ...          Dysart & Mitchell for respondent ...    \xC2" ... ...
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