Brown v. Barrett

• Decision Date: 30 April 1882
• Citation: 75 Mo. 275
• Parties: BROWN et al., Appellants, v. BARRETT.
• Court: Missouri Supreme Court

75 Mo. 275

BROWN et al., Appellants,

v.BARRETT.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge

AFFIRMED.

O. A. Crandall for appellants.

Before the contract between appellants and Ed. J. Brown had been executed, and while the title to the land in controversy was still in appellants, the defendant Barrett became their vendee, instead of Brown. By his trade with Brown, he took his place in the contract with the appellants--became the holder of the forged note, and undertook to pay all the purchase money for the land. It is well settled that a payment in forged or counterfeit notes is no payment at all; therefore, the delivery of the note and deed of trust for $5,000, which turned out to be forgeries, was no payment, but simply a nullity, and the amount of said forged note and interest is still due the appellants, for which they have a vendor's lien. Story on Notes, (5 Ed.) § 118; 2 Parsons Notes and Bills, 589, 590; 1 Daniel Negot. Inst., §§ 730, 731; Markle v. Hatfield, 2 John. 455; Ontario Bank v. Lightbody, 13 Wend. 101; Simms v. Clark, 11 Ill. 137; Magee v. Carmack, 13 Ill. 289; Goodrich v. Tracy, 43 Vt. 314; s. c., 5 Am. Rep. 281.

George G. Vest and Philips & Jackson for respondent.

HENRY, J.

In September, 1870, plaintiffs sold to E. J. Brown a tract of land in Pettis county for $13,390, which was to be paid as follows: $1,000 in sheep, $7,390 in cash, and the balance, $5,000, in a note purporting to have been executed by Henry J. Smith and secured by a deed of trust on 1,280 acres of land in Clay county, Iowa. There was a written contract between the parties embodying the terms of the agreement. The sheep were delivered, and it was agreed between the vendors and the vendee that the vendors should execute a deed to the vendee for the Pettis county land, and leave it with Barrett until the balance of the purchase money and the said note and mortgage should have been paid and delivered to the vendors. The deed was executed and placed in Barrett's hands, and the balance of the purchase money and the note and mortgage were ultimately deposited with Barrett by E. J. Brown, but discovering a defect in the title of plaintiffs to the Pettis county land, the payment of the balance of the purchase money and the delivery of the note and mortgage of Smith, were deferred until the title should be perfected, and before this was done, Barrett purchased of E. J. Brown the Pettis county land, and, instead of taking a deed from him to the land, it was arranged that he should receive a deed directly from plaintiffs. The balance of the purchase money was then paid, and Smith's note and mortgage were delivered to plaintiffs, and they executed to Barrett a deed for the Pettis county land.

This suit was to enforce a vendor's lien against the land for the amount of the Smith note, plaintiffs alleging and proving that they were forgeries. It was also averred that Barrett knew that the note and mortgage were forged, and that the payment of that amount of the price he was to pay E. J. Brown for the land, was made with that note and mortgage. Barrett alleged that he paid E. J. Brown, of his own money and effects,...