Meyer v. Koehring

• Decision Date: 04 June 1895
• Citation: 129 Mo. 15,31 S.W. 449
• Parties: MEYER et al. v. KOEHRING et al.
• Court: Missouri Supreme Court

31 S.W. 449

129 Mo. 15

MEYER et al. v. KOEHRING et al.

Supreme Court of Missouri, Division No. 2.

June 4, 1895.

GIFT — EVIDENCE OF — ASSIGNMENT OF NOTE — CONSIDERATION.

1. The allegation in a petition that the note in suit was assigned to plaintiff "for a good and valuable consideration" is sustained by evidence that the consideration was "natural love and affection."

2. On the issue of whether a mother gave her daughter a note secured by a trust deed, it appeared that the note, with other papers, was given to the daughter for safe-keeping; that the indorsement of the note to the daughter was signed by the mother; that the mother made a will wherein she gave the note to the daughter. A granddaughter testified that the mother stated to her that she had made the daughter a present of the note. Held sufficient to support a finding in favor of the gift, though denied by the mother.

Appeal from circuit court, Franklin county; Rudolph Hirzil, Judge.

Action by Lisette Meyer and another against Maria E. Koehring and others for the cancellation of a deed of release of a certain deed of trust made by Maria E. Koehring to her co-defendants. From a decree for plaintiffs, defendants appeal. Affirmed.

This is a proceeding in equity for the purpose of having canceled a certain deed of release executed by defendant Maria E. Koehring to her codefendants, Clara M. and John H. Koehring, on the 14th day of November, 1892, releasing a certain deed of trust executed by said Clara M. and John H. Koehring on the 20th day of February, 1892, to the plaintiff Wherman, as trustee, on certain lands therein described, to secure the payment of two promissory notes, for the sum of $832.50 each, executed by them to said Maria on said 20th day of February, 1892, — one payable one year after date, and the other payable in two years after its date, — and for the foreclosure of said deed of trust. Plaintiff Lisette Meyer claims to be the owner and holder of the first-described note. In February, 1892, Maria E. Koehring sold a farm situated in Franklin county, which she then owned, to her son and codefendant, John H. Koehring, for the sum of $2,497.50, payable one-third cash, and the balance in one and two years. The cash payment was made, and the notes, and deed of trust to secure the payment thereof, executed, as before stated. Plaintiffs allege in their petition that on the 4th day of March, 1892, said Maria, "for good and valuable consideration, by indorsement in writing, assigned and transferred and delivered" the first of said notes which became due to said Lisette, and that said defendants combined and confederated together to wrong and defraud said Lisette, and for that purpose made, and caused to be filed and recorded, the said deed of release; that said deed of release impaired said Lisette's security for the payment of said note; that defendants were all insolvent; and that said note was past due. Defendants, in their answer, admitted the execution and delivery of the notes and deed of trust to the defendant Maria, and the deed of release by her to her codefendants Clara M. and John H. Koehring, but denied all other allegations in the petition. It then alleged that defendants Clara M. and John H. are husband and wife; that defendant Maria is a widow, and the mother of the plaintiff Lisette, and of her codefendant John H. Koehring; that, at the time of the execution and delivery of said notes and deed of trust, said Maria was boarding with said Lisette, and, on receipt of said notes and deed of trust, placed the same, together with other of her papers, in the care and custody of said Lisette, for safe-keeping; that a few months thereafter said Maria, by reason of unkind treatment received at the hands of her said daughter, left her daughter's house, leaving her papers, also, which were still in her daughter's control; that a few days thereafter she sent to said Lisette for her papers, when her said daughter sent to her all of them, except the note sued on, which she wrongfully withheld, and still wrongfully withholds. Plaintiffs made reply to defendant's answer, denying all the allegations therein contained. The trial resulted in a judgment and decree for plaintiffs in accordance with the prayer of the petition, canceling the deed of release, and foreclosing the deed of trust. Defendants appealed.

John W. Booth, for appellants. J. C. Kiskaddon, for respondents.

BURGESS, J. (after stating the facts).

The evidence tended to show: That the defendant Maria E. was 83 years of age in July, 1893. That she had been a widow for over 20 years at the time of the trial of this cause. That she had six living children, all of whom were married. That prior to and up to October, 1891, she lived with her son John H. on her farm, when she left there, and went to her daughter Lisette's house, in Washington, in that county, and continued to live with her daughter for nearly a year, and then returned to the house of her son; not, however, until after she had sold her farm to him. That in February, 1892, she employed the plaintiff Wherman to sell her farm, and that he sold it to the defendant John H. Koehring for the sum heretofore stated, one-third being paid in cash, when she executed a deed thereto to Clara M., John H. Koehring's wife, at his request, and he executed his notes, and he and his wife, Clara, executed a deed of trust on the land to plaintiff Wherman, as trustee for Maria E. Koehring, to secure the payment of the balance of the purchase money. The notes and deed of trust were executed on the 20th day of February, 1892 and, after they had been delivered to Maria E. Koehring, she handed them to Lisette, to put away and take care of for her. On the 4th day of March, 1892, Maria E. made a will, which was written by said Wherman at her request, and in which is contained the following provision with respect of the note in question, to wit: "I, Maria Elizabeth Koehring, of the city of Washington, in the county of Franklin and state of Missouri, do hereby make, publish, and declare this my last will and testament, intending thereby to dispose of all my estate of which I shall be possessed at the time of my death. First. I have, give, and bequeath unto my daughter, Lisette Meyer, a born Koehring, a certain promissory note for eight hundred and thirty-two dollars and fifty cents, in words and figures as follows, to wit." Then follows...