Carter v. Harber

• Decision Date: 31 March 1853
• Citation: 18 Mo. 204
• Parties: CARTER, Respondent, v. HARBER & PELHAM, Appellants.
• Court: Missouri Supreme Court

18 Mo. 204

CARTER, Respondent,

v.HARBER & PELHAM, Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. Where a note given for a quit-claim deed was payable unless the grantees should within twelve months establish that the grantors had no title, it was held, that if the grantees failed to establish the want of a title within twelve months, they could not afterwards set the same up as a defence to the note by way of failure of considration

Appeal from St. Louis Court of Common Pleas.

Krum & Harding, for appellants.

Blennerhassett & Shreve, for respondent.

RYLAND, Judge, delivered the opinion of the court.

Henry Harber and Andrew J. Pelham, on the 17th day of October, 1848, at Collinsville, made their promissory note as follows:

“Collinsville, October 17th, 1848.

Twelve month after date, for value received, we or either of us promise to pay William Matthew and Charles D. Willoughby, or their order, the sum of eight hundred and sixty dollars, as witnesseth our hands this date first above written.

HENRY HARBER,

A. J. PELHAM.”

“For value received in full, we do hereby assign the above note to Henry J. Carter, this 8th April, 1851.

WM. J. MATTHEWS and CHAS. D. WILLOUGHBY.”

On this note Carter filed his petition in the St. Louis Court of Common Pleas against the defendants, Harber & Pelham, at the September term, 1851.

The defendants answered the petition of the plaintiff, and admit that they made the promissory note in said petition mentioned, but deny that they ever received any value for the same. They stated that they knew nothing of the assignment of the note, and having no belief as to it, required proof.

They also stated that the said note was made by them and delivered to the payees aforesaid, under an agreement that the same should be paid only upon a certain condition, and otherwise should be void and of no effect; that, according to the terms of said agreement, the consideration of said note has wholly failed. The defendants, therefore, deny that they owe the plaintiff the said note, or any part thereof, and ask judgment of the court for their costs herein expended. The defendants filed a copy of the agreement mentioned in their answer. The case was submitted to the court without a jury. The court found that the defendants were indebted to the plaintiff, and rendered judgment against them in his favor, for the sum of one thousand and twenty-three dollars and forty cents.

The following was the finding of the court: “The court finds the facts to be as follows: that the note sued on was assigned to the plaintiff; that the same was for a valuable consideration; that said Harber did fail to make it appear, by due course of law, within twelve months from 17th October, 1848, that William Matthews and Charles D. Willoughby and their lawful wives, had no claim, as heirs, to the tract of land mentioned; whereupon the court declares, that the plaintiff is entitled to recover the debt and interest.” Judgment was given for $1,023.40.

Motion for review was made and overruled. The defendants excepted, and bring the case here by appeal.

The following is the agreement set up in the defendant's answer, as it appears in the bill of exceptions:

“State of Illinois,

)

)

Madison county.

)

This certifies that we, the undersigned, have this 17th day of October, A. D. 1848, received an obligation signed by Henry Harber and A. J. Pelham, for the sum of eight hundred and sixty dollars, payable twelve months from date, which note or obligation was given in consideration and in consequence of the undersigned and their wives having this day given to the said Henry Harber their quit-claim deed to the fractional section seven, in township two north of range eight west, containing three hundred and thirty-four acres and thirty-four-hundreths of an acre, and lies in St. Clair county and State of Illinois: Now it is expressly understood, that if the said Henry Harber shall fail to make it appear, by due course of law within twelve months from this date, that the undersigned and their lawful wives have no claim as heirs to the foregoing and described tract of land, then in case of such failure on the part of said Henry Harber, the said note or obligation shall faithfully be paid. In testimony whereof, we have hereunto set our hands, this 17th day of October, A. D. 1848. (Signed,)

WM. MATTHEWS and CHAS. D....