Copeland v. Loan

• Decision Date: 31 July 1846
• Citation: 10 Mo. 266
• Court: Missouri Supreme Court
• Parties: COPELAND v. LOAN.

10 Mo. 266

COPELAND

v.LOAN.

Supreme Court of Missouri.

July Term, 1846.

ERROR TO JACKSON CIRCUIT OOURT.

LEONARD & BAY, for Plaintiff. 1st. The pleas contain a good defense to the action, and the demurrer was therefore improperly sustained. The consideration of a note may be always inquired into in a suit on the note between the original parties. Hill v. Bannister, 8 Cowen, 31; Pearson v. Pearson, 7 Johns. R. 26; Schoonmaker v. Roosa, 17 Johns. R. 303; Rann v. Hughes, 7 Term R. 350, note; Slade v. Halsted, 7 Cowen, 322; see also Rev. St. 1845, title Practice, 832, §§ 19, 20, 21. 2nd. The facts stated in the pleas show a total failure of consideration; a note given for the purchase-money of land to which the vendor had no title, is without consideration. Frisbee v. Hoffnagle, 11 Johns, R. 50; Jones v. Shaver, 6 Mo. R. 642.

STRINGFELLOW, for Defendant. 1st. The first plea is defective; the fraud set forth not being fraud in procuring the note, but merely fraudulent representations of the consideration of the note. 2nd. The pleas alleging a failure of consideration, are defective in not setting out the contract between the parties for the sale of the land. It should appear whether the contract was reduced to writing. It is submitted that when the vendor has given to the vendee a title bond, or covenanted to make a deed, the vendee must rely upon his covenant, unless he show by his plea that the vendor is insolvent, or other cause sufficient to warrant this defense. A court of law has no power to compel the vendee to surrender his covenant, and thus place the parties in their original situation by rescinding the contract; and hence, will not enable the vendee to avoid the payment of the purchase-money, and still hold the vendor bound to make a title. Bruffey v. Brickey, 5 Mo. R. 400.

SCOTT, J.

The defendant in error brought an action by petition in debt, on a promissory note, executed by the plaintiff in error. The plaintiff in error filed four special pleas, alleging in substance, that the note sued on was obtained by fraud and misrepresentation in this, that the said Loan, the defendant in error, fraudulently represented himself to the plaintiff in error, to be the owner of a lot of ground in the town of Independence, which he sold to them for the sum of $500--$100 of which was paid, and that the note in suit was given for the balance. That the said defendant was not, at the time of sale, and is not, the owner of the said lot of ground. The two last pleas allege also that the fee simple of the lots is in the county of Jackson. There was a demurrer to these pleas, and judgment given on...