Mayes v. Robinson

• Decision Date: 14 November 1887
• Citation: 5 S.W. 611,93 Mo. 114
• Parties: Mayes et al., Appellants, v. Robinson
• Court: Missouri Supreme Court

5 S.W. 611

93 Mo. 114

Mayes et al., Appellants, v. Robinson

Supreme Court of Missouri

November 14, 1887

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

Affirmed.

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 betrayed an inner consciousness that the title was not only "shady," but the transaction was "smoky," and a preparation in advance to put the title where it would be least vulnerable. Cass Co. v. Green, 66 Mo. 498; Adams v. Adams, 21 Wall 185; Com. v. Webster, 5 Cush. 295; The People v. Wharton, 4 Barb. 438. (8) The appellant did not become personally liable to pay the note by accepting a conveyance of the premises containing a recital that it was subject to a deed of trust securing it. Heim v. Vogel, 69 Mo. 535; Swope v. Leffingwell, 72 Mo. 356. (9) But Robinson says he relied on the title exclusively in making the purchase of the note; if so he is bound by every recital in that chain of title. This he must have done, for he agreed not to look to his endorsers, either in law or equity, and as we have seen, appellants were not personally liable on the note. Robinson is, therefore, to be treated as a purchaser of real estate, and the rules governing such purchasers, that circumstances which would put an ordinarily prudent man on inquiry amounts to notice should be applied proprio vigore to the transaction.

O. L. Houts for respondent.

(1) The answer is good. (2) The remaining contention of appellants is, that the finding was against the weight of the evidence. It is not manifest that the chancellor disregarded the evidence in the case, and this court will, therefore, defer to the finding, which was for respondent. Sharpe v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Snell v. Harrison, 83 Mo. 651. (3) The finding was manifestly right under the evidence. "The possession of negotiable paper carries the title with it to the holder." "The party who takes it before due for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by title valid against the whole world." "Suspicion of defect of title or knowledge of circumstances which would excite such suspicions in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title. That result can be procured only by bad faith on his part." Hamilton v. Marks, 63 Mo. 167; Johnson v. McMurry, 72 Mo. 278. Plaintiffs purchased for value, before maturity, March 10, 1882; at that time the consideration had not failed. Appellants were in possession of the land, and were not dispossessed until June, 1882. At that time, then, the note was good, and the finding must have been for respondent. Respondent was not compelled to look out for signs of disease that might undermine the constitution of the note, in the future, and cause a failure of consideration; but if so, the evidence discloses no such signs. (4) Appellants, by their acts, are estopped from denying the consideration of this note in the hands of respondent. Tayer v. Zepp, 14 Mo. 482; Bigelow on Estoppel, 387; Fitzgerald v. Barker, 85 Mo. 13.

OPINION

Brace, J.

In March, 1873, James C. Rogers died, seized in fee of the one hundred and twenty acres of land described in the petition, leaving surviving him his widow, Sarah J., who afterwards intermarried with Fayette F. Payne, and one child, Thomas, aged about two years. In October, 1876, said real estate, in a proceeding in the probate court of Johnson county, in which county the same was situate, was set off to said widow and child as a homestead. On the second day of November, 1876, the said Sarah J. sold, for the consideration of fifteen hundred dollars, and, with her husband, conveyed by general warranty deed, said real estate to one Amanda E. Edwards. On the first of January, 1878, for the consideration of sixteen hundred and fifty dollars, the said Amanda E. Edwards sold, and, with her husband, conveyed, by general warranty deed, said real estate to one Robert F. Dixon, who paid seven hundred and twenty dollars of the purchase money in cash, and for the remainder executed his two negotiable promissory notes, one for one hundred and thirty dollars, payable on or before the first day of November, 1878, the other for eight hundred dollars, in words and figures as follows, to-wit: "On or before the first day of January, 1892, and for value received, I promise to pay or cause to be paid to Amanda E. Edwards, or order, the just and full sum of eight hundred dollars, negotiable and payable without defalcation or discount, with interest at the rate of ten per cent. per annum, to be paid annually; in case of default in the payment of said interest the above note becomes due and payable, as witness my hand this first day of January, 1878. R. F. Dixon." And to secure the payment of said two negotiable promissory notes, the said Dixon, on the same day, executed a deed of trust in common form, with power of sale, to James R. Parrot, trustee.

The foregoing conveyances were all properly executed and acknowledged, and of record in Johnson county aforesaid when, on the eleventh day of August, 1880, the plaintiffs, being in possession of an abstract of the title of said real estate, showing as well such conveyances as said proceedings of said probate court setting off said land as a homestead, and who, at that time, were acquainted with the said Thomas Rogers and his mother; knew that said land had been set off to them as a homestead, and that the said Thomas was a minor and the son of the said James Rogers, and that there was a controversy as to his interest in the land, purchased said real estate of said Dixon, who before that date had paid off the one hundred and thirty-dollar note, and the accrued interest on the eight hundred-dollar note to January 1, 1880, and fifty dollars of the principal thereof, paying said Dixon, as the consideration for said real estate, the sum of one thousand and fifty...