Allen v. Dermott

• Decision Date: 31 October 1883
• Citation: 80 Mo. 56
• Parties: ALLEN v. DERMOTT, Plaintiff in Error.
• Court: Missouri Supreme Court

80 Mo. 56

ALLEN

v.DERMOTT, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Jasper Criminal Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

Harding & Buler for plaintiff in error.

W. M. Robinson for defendant in error.

MARTIN, C.

The plaintiff sued upon a promissory note made by the defendants, dated May 9th, 1877, and payable in the sum of $359.50 to one John Webb, who assigned the same to plaintiff. It does not appear from the record that any writ of summons was issued in the case. Dermott appeared and pleaded payment. Afterward this plea was withdrawn or superseded by an amended answer in which he denied each and every allegation of the petition. In the same answer he proceeded to state a special defense, which is very long, and may be stated in substance as follows: That on the 9th day of May, 1877, the defendant Dermott and his co-defendant Stringer, conveyed by mortgage a lot in Jasper county to J. C. Webb to secure the note held by him; that in July, 1877, the defendants entered into a “trade” with one Catharine Sharp, by which they conveyed the Jasper county lot and other property to her in exchange for 160 acres of land in Dade county and other property; that the Dade county land was to be and was conveyed to the defendant Stringer, and that Stringer in consideration thereof assumed the payment of the whole of the mortgage resting on the Jasper county lot, and, for the purpose of indemnifying Mrs. Sharp against the mortgage resting on the lot conveyed to her, gave her back a mortgage on the Dade county lot received from her; that afterward Stringer conveyed the Dade county lot to one John A. Allen, “who took the same subject to the indemnifying mortgage aforesaid, and with notice thereof;” that upon threats from Mrs. Sharp that she would foreclose the mortgage on the Dade county lot, said John A. Allen “went to said John C. Webb and paid off the said note in full.”

To this statement the defendant adds the following words, which, on motion of plaintiff, were stricken out: “Defendant further says that as to whether the said note was assigned to plaintiff or not, he does not know, but that if it was, then the assignment was merely colorable and made for the purpose of concealing the fact that the said note was fully paid, and that the said note is not really the property of the said Samson R. Allen, but was paid off and discharged by the said John A. Allen to protect his property from sale thereunder.” The answer then goes on to say that if the note in suit should turn out to be the property of the plaintiff, it still remains secured by the original mortgage on the Jasper county lot, which is more than sufficient to satisfy the same; that said lot is claimed to be owned by one Shapley, of Barton county, who took his title subject to said mortgage; that Stringer is insolvent. By reason of these facts the defendant avers that said note has been paid so far as he is concerned. He then asks that if the plaintiff, notwithstanding these facts, “will persist in prosecuting this suit” he be required to make Allen and Shapley parties to it, and to first exhaust the mortgaged property before proceeding further against him.

After the motion to strike out had been sustained, the case went on to trial. The defendant offered no evidence and judgment was given for plaintiff against Dermott alone. Whether the other defendant was served with process or for what reason judgment did not go against him also, does not appear in the record. The defendant saved his exceptions to the action of the court in striking out the words designated by us, and brings the case here on writ of error.

1. DEED OF TRUST: satisfaction by stranger: subrogation.

The court committed no error in sustaining the motion to strike out. It is...