Burrows v. Alter

• Decision Date: 31 May 1842
• Citation: 7 Mo. 424
• Court: Missouri Supreme Court
• Parties: BURROWS & JENNINGS v. ALTER AND OTHERS.

7 Mo. 424

BURROWS & JENNINGS

v.ALTER AND OTHERS.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS CIRCUIT COURT.

HAMILTON, for Plaintiffs.

BLAIR and GANTT, for Defendants.

SCOTT, J.

The plaintiffs, as indorsers, brought an action of assumpsit on a bill of exchange against the defendants, as drawers of the same. The defendants pleaded a release. The plaintiffs replied that the release was obtained by fraud, covin, and misrepresentation, on which issue was joined. On the trial the plaintiffs obtained a verdict and judgment, to reverse which this writ of error is prosecuted.

It appears from the evidence that the defendants, being in failing circumstances, made an assignment of their effects for the benefit of their creditors. The deed of assignment contained a clause by which all creditors claiming the benefits of its provisions, were required to release their debts against the defendants. The plaintiffs became a party to the assignment by executing the same. It is admitted that under the decisions of this court the deed of assignment was void as to creditors. Under the plea that a deed was obtained by fraud, covin, and misrepresentation, the only evidence of fraud that can be received is that in relation to the execution of the instrument, as that the party was illiterate, and the deed was misread to him, or that another deed than that intended to be executed was substituted. But fraud in the consideration, or a partial or total failure of consideration, is no defense to an action at law on a bond. The seal itself imports a consideration. Relief must be sought in a court of equity. Don v. Munsell, 13 Johns.; Jackson v. Hill, 8 Cowen; 6 Munford, 358; Montgomery v. Tipton, 1 Mo. R. 446. ^(a) It has been repeatedly remarked that the precedent of a plea in Chitty, asserting a doctrine contrary to this principle, is without authority, and is not sustained by the cases cited in support of it.

We cannot imagine on what ground it can be said the release pleaded in bar, was fraudulently obtained by the defendants. The deed of assignment was not absolutely void; it was only voidable by the creditors and purchasers of the party making it. Wright v. Crockett, 7 Mo. R. 175; 15 Johns. R. 571; 5 Cowen, 547. Here the plaintiffs so far from avoiding the deed, voluntarily assented to it, with their eyes open, and fully apprised of all the facts, they executed it. How can it be said that the deed was made to hinder, delay, or defraud them, when they voluntarily...