Chilton's Adm'r v. Chapman

• Decision Date: 31 July 1850
• Citation: 13 Mo. 470
• Parties: CHILTON'S ADM'R v. CHAPMAN.
• Court: Missouri Supreme Court

13 Mo. 470

CHILTON'S ADM'R

v.CHAPMAN.

Supreme Court of Missouri.

July Term, 1850.

ERROR TO CHARITON CIRCUIT COURT.

The plaintiff's intestate instituted his action, in the Chariton Circuit Court, against the defendant, to recover from him one half of a debt the plaintiff had paid to the Branch Bank of Missouri, at Fayette, for the payment of which the plaintiff and defendant were securities of one Thomas Chilton, who was the principal debtor to the bank. There is but one count in the declaration, for money had and received, for money paid, laid out and expended, for money lent and advanced, and for work and labor, care and diligence. The defendant made a defense, and upon a trial in the Circuit Court, the plaintiff took a non-suit and afterwards moved to set it aside which was refused, a bill of exceptions taken and the case brought here by writ of error.

The following are, in substance, the facts as presented in the bill of exceptions. The plaintiff, on the trial, introduced and read as evidence, the written statement of James A. Shirley, who proved “that a note was executed by Thomas Chilton, Charles A. Chapman and M. A. Chilton, to the Bank of the State of Missouri for two hundred and fifty dollars, negotiable and payable at the branch of said bank, at Fayette, November 15, 1845, in four months--that Chapman and M. A. Chilton, were each securities to said note--that one half the debt, interest and protest fees was paid to him by the agent of M. A. Chilton in Boonville, on the 29th of July, 1846, and that the credit on the note was made by him--that the amount was one hundred and twenty-nine dollars and fourteen cents--that the note was placed in the hands of the bank attorney, and was collected--that he had seen a deed of trust of record in Howard county, which was made to secure M. A. Chilton, one of the indorsers on said note above described, as he had understood from Mr. Chilton, and that it must relate to the note as none other was owing the bank by Thomas Chilton, and that he also knew it as he was then the clerk of the bank.” The plaintiff then read the note referred to. The plaintiff then read a transcript of a judgment and execution thereon, obtained in the Cooper Circuit Court, showing that the note had been paid off by Mark A. Chilton--this was all the evidence given by the plaintiff.

The defendant, by consent of the plaintiff, then read to the jury a copy of a deed of trust executed by Thomas Chilton to Mark A. Chilton and others, to secure the payment of this debt. The defendant then introduced Owen Rawlins, who testified that about two years ago, Albert Silman and Charles Chilton, who assumed to act as agent for the plaintiff, requested the witness (who was the trustee in the deed) to close the deed. In accordance with said request, he requested the editor of a newspaper to advertise the land and negro mentioned in the deed for sale--that on the day set for the sale, the witness was informed the notice was not legal, and under advice of Mr. Leonard and Charles Chilton, the land and negro were advertised again for sale--the notice was put into the paper by Charles Chilton--that on the day of sale, one John D. Thompson bid off the land for two hundred dollars, and the negro for eighty dollars; both were sold subject to all incumbrances--that Thompson represented that he bid them off for Silman--that on the same day, Charles Chilton, who is the son-in-law of the plaintiff, and brother of Thomas Chilton, came to witness and proposed that he would write the deed of conveyance so as to save expense. The witness told him that he would make no conveyance until the money was paid, as the terms of the deed of trust required that he should pay the bank debt first. Chilton then left and said nothing more--that no money was ever paid by Silman or Thompson, and that he had never made any conveyance for the property to any one--that he did not execute the deed of trust himself, nor did he ever have the property in possession under the deed, but that he has since hired the negro man a short time from Charles Chilton. The defendant then introduced John D. Thompson who proved that he was at the sale of the property by Rawlins--that Silman was sick at the time and requested witness to bid in the property for him--that Silman told him to run the land to $600, and the negro to $200--that he had no conversation with Charles Chilton on the subject--that he bid off the land for $200 and the negro for ninety dollars, and told Judge Rawlins it was for Silman--witness paid no money--that the land, if clear of incumbrance, was worth eight hundred dollars, but would not give as much for the negro as he was bid off...