Cox v. Beltzhoover

• Decision Date: 31 October 1847
• Citation: 11 Mo. 142
• Parties: COX, BY HER CURATOR, COX, v. BELTZHOOVER.
• Court: Missouri Supreme Court

11 Mo. 142

COX, BY HER CURATOR, COX,

v.BELTZHOOVER.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

LACKLAND, for Plaintiff.

1. The contract is valid, the promisee is sufficiently described by the terms of the note. The word heirs, as used in the note, is merely descriptio personae, and it has several significations known in law, and the plaintiff was an heir in one sense when the note was given. See Cruise's Digest, title Devise, ch. 10, § 23; Bac. Abr. title Heir, B; Bacon v. Fitch, 1 Roote, 181; Lockwood v. Jesup, 4 Conn. R. 272, 2nd series. 2. If the word heir be of itself inapplicable to the plaintiff, it might be explained and applied by averments. Swift's Dig. 608; The Medway Cotton Manufactory v. Adams et al. 10 Mass. 360; New York African Society v. Varick et al. 13 Johns. 38; Wells v. Barrett, 2 Stark. Ca. 29. The promise is to take effect immediately, because it is the assumption of a debt by defendant which he admits to be then due; is liable to be enforced immediately; is to draw interest immediately, and the maker intended to make the promise to a person at the time in existence and capable of being a party to the contract and calling for its enforcement.

HOLMES, also, for Plaintiff. The case of Yantis et al. v. Yourie, 10 Mo. R. 669, is believed to be in point in this case.

TODD & KRUM, for Defendant. The Circuit Court did not err in sustaining said demurrer. 1. Because the promise or undertaking of the defendant was not made to the plaintiff by name, nor does the plaintiff's declaration contain any averments which show that the promise or undertaking of the defendant was in fact made to the plaintiff. 2. The undertaking of the defendant, by the terms of the note, is to the “heirs of Elizabeth Cox by her marriage with Wm. Cox.” The promise, therefore, by any reasonable construction of the note itself, is made to all the heirs of Elizabeth Cox by said marriage, &c. but the plaintiff has not, by any proper averments, shown that the plaintiff is the person intended and designated by the term heirs in the note. 3. From the orments in the plaintiff's declaration, the court must presume that the said William and Elizabeth Cox were alive at the time of the making of the said note, and that they are still living. Nothing is averred to rebut this presumption. 4. In the absence of proper averments to the contrary, the heirs of Elizabeth Cox, by her said marriage, &c., cannot be definitely known until the decease of the said Elizabeth and William, or one of them. 5. There is no averment that the promise was made or intended to be made to the heirs of said Elizabeth, born of the said marriage with said William, and which had been annulled previous to the making of said note. The said Elizabeth and William, at the time of the making of the said note, were capable of contracting marriage, notwithstanding said divorce, and it is not inconsistent with anything contained in the plaintiff's declaration to assume that said Elizabeth and William had again intermarried at the time of the making of the said note. 6. If the averment that the marriage between the said William and Elizabeth had been annulled, & c., is material to show the plaintiff's right of action, then such averment is defective, for it is not shown or averred that the said court of chancery in Illinois had jurisdiction or authority in the premises, nor are the proceedings of the said court verified with a prout patet per recordam; therefore, and by reason of such defects, the demurrer of the defendant is well taken. 7. The averment in the plaintiff's declaration that the defendant promised the plaintiff, by the appellation of the heirs of Elizabeth Cox, &c., to pay said sum to the plaintiff, &c., is not true in fact, as the profert of the note clearly shows; therefore such averment neither aids nor establishes the plaintiff's cause. 8. To constitute an heir in the proper sense of the term, the death of the ancestor is essential.

MCBRIDE, J.

This was an action of assumpsit brought by Cox against Beltzhoover in the Circuit Court of St. Louis upon the following instrument of writing: “I, Samuel S. Beltzhoover, hereby agree to pay the heirs of Mrs. Elizabeth Cox, by her marriage with William Cox, the sum of seven hundred and seventy-five dollars, it being the amount due them from Frederick W. Beltzhoover and assumed by me, in part consideration for a lot of ground on block seventy-six and improvements, this day conveyed to me by said Frederick W. Beltzhoover. St. Louis, November 12, 1842.

(Signed)

SAMUEL S. BELTZHOOVER.”

The declaration contains ten counts. In several counts, the above instrument of writing is substantially set out, and it is averred that by virtue of a decree in chancery, rendered by the Circuit Court of Cass county, in the State of Illinois, on the 22nd May, 1839, and before the said note was made, the contract of marriage then existing between said Elizabeth and William Cox, was annulled; that at the time said note was made, the plaintiff in error was, and now is, the child and presumptive heir, and the only presumptive heir, of the said Elizabeth Cox, by her marriage with William Cox; and said defendant, in and by said note, promised the said plaintiff, by the appellation of the heirs of Mrs. Elizabeth Cox by her marriage with William Cox, and describing her as such, to pay her, &c. To this declaration the defendant filed a general demurrer, which the court...