5 S.W. 611 (Mo. 1887), Mayes v. Robinson

Citation:5 S.W. 611, 93 Mo. 114
Opinion Judge:Brace, J.
Party Name:Mayes et al., Appellants, v. Robinson
Attorney:S. P. Sparks and John J. Cockrell for appellants. O. L. Houts for respondent.
Case Date:November 14, 1887
Court:Supreme Court of Missouri

Page 611

5 S.W. 611 (Mo. 1887)

93 Mo. 114

Mayes et al., Appellants,



Supreme Court of Missouri

November 14, 1887

Appeal from Johnson Circuit Court. -- Hon. N. M. Givan, Judge.


S. P. Sparks and John J. Cockrell for appellants.

(1) The general denial of notice charged in the petition was insufficient to base the defence of innocent purchaser for value without notice upon. The charge should have been specially denied, and the answer affirmatively alleged that he was such purchaser. Frost v. Beekman, 1 Johns. Ch. 288; Murray v. Ballou, 1 Johns. Ch. 566; Murray v. Finster, 2 Johns. Ch. 155; Jewell v. Palmer, 7 Johns. Ch. 65; Halsee v. Halsee, 8 Mo. 303. (2) The note having been given for part of the purchase money of the real estate, the title to which had failed to the extent of the interest of the minor son in the homestead, the consideration of the note entirely failed, as it represented the value of the interest of the minor son. Story on Prom. Notes [3 Ed.] sec. 187; Rogers v. Mayes, 84 Mo. 520; Canole v. Hurt, 78 Mo. 649. (3) Defendant was bound with constructive notice of all recorded instruments in the chain of title he was buying. Scott v. McCulloch, 13 Mo. 13; Durette v. Briggs, 47 Mo. 356; Tyding v. Pitcher, 82 Mo. 379; Orrick v. Durham, 79 Mo. 174. (4) The recitals in Dixon's deed to appellants informed Robinson that their assumption of this note was part of the consideration of that deed, and the covenant not to pay the same until 1892 were facts that would have put an ordinarily prudent man upon inquiry and fixed him with notice. Robinson read this deed. Major v. Buckley, 51 Mo. 227; Ware v. Lord Egmont, DeG., M. &. G. 460; Meier v. Blume, 80 Mo. 179; Kingsland v. Drum, 80 Mo. 646; Cedar Co. v. Williams, 79 Mo. 581; Orrick v. Durham, 79 Mo. 174; Leavitt v. Laforce, 71 Mo. 353. (5) The homestead proceedings were set out in the abstract Rowland made for Robinson, and he had actual notice by it of the interest of the minor child, but these proceedings were essential to make out his title, and the effect is the same whether they were recorded or not. Johnston v. Gwathmey, 4 Litt. (Ky.) 221; Orrick v. Durham, 79 Mo. 174. (6) Rowland, who conducted the negotiations resulting in the purchase of this note, had been the confidential agent of Robinson for years in similar transactions, had full knowledge that this note was for a part of the purchase money, and it is altogether improbable that he would withhold such history from his friend and confidante, but Robinson says he relied upon Rowland's assertions respecting the title; having so relied, he became bound by the knowledge which Rowland possessed. Leavitt v. Laforce, supra; Meier v. Blume, supra. (7) The restrictive endorsement of Edwards and wife, "pay to order of ---, without recourse on us in law or equity;" the recital in deed of Dixon to appellants, "subject, however, to a mortgage in favor of Amanda E. Edwards for eight hundred dollars; due in the year 1892. * * * The said mortgage is to run until the same becomes due;" the great length of time before the maturity of the note; the inadequate consideration he was paying; the notoriety in the neighborhood that there was something "shady" about the title, were sufficient to charge him as a purchaser mala fides of the note. Edwards v. Thomas, 66 Mo. 468; 1 Daniel Neg. Inst., sec. 795; Cass Co. v. Green, 66 Mo. 498. The denial of Robinson, after his purchase, of knowing anything about this note, as well as Rowland's indisposition to talk, coupled with the fact that the name of the assignee in the endorsement was left out, looked as though they were preparing in advance for what subsequently happened, and likewise...

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