Dolan v. Kehr

• Decision Date: 16 November 1880
• Citation: 9 Mo.App. 351
• Parties: ANN DOLAN, ADMINISTRATRIX, ET AL., Respondents, v. EDWARD C. KEHR ET AL., Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 351

ANN DOLAN, ADMINISTRATRIX, ET AL., Respondents,

v.EDWARD C. KEHR ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 16, 1880.

1. A note secured by a deed of trust was paid, but, as a protection against a judgment creditor of the maker, was, with the deed of trust, by the maker handed to A., to whom the land had been conveyed. The judgment was satisfied, but A. retained the note and gave it to B., without consideration, though he did not claim to own it. A. died seized of the land. In a proceeding by A.'s heirs to have the note and deed of trust cancelled: held, that there was no title in A., and that B.'s holding created no charge on the property.

2. Though the maker of the note was made a party defendant, he was a competent witness for A.'s heirs, though A., the other party to the contract, was dead.

3. The admissions of A. were competent to show how he held the note, though not made in B.'s presence.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

PATTISON & DOOLEY, for the appellants: There was no merger.-- Atkinson v. Angert, 46 Mo. 515; Forbes v. Moffatt, 18 Ves. 384; Campbell v. Carter, 14 Ill. 286; Jarvis v. Frink, 14 Ill. 396. A party to a contract who is also a party to the suit is disqualified as a witness where the other party is dead.-- Loker v. Davis, 47 Mo. 141; Granger v. Bassett, 98 Mass. 467; Lewis v. Weisenheim, 1 Mo. App. 222; Stanton v. Ryan, 41 Mo. 511; Poe v. Domec, 54 Mo. 119; Angell v. Hester, 64 Mo. 142; Bradley v. West, 68 Mo. 69; Madden v. Jones, 59 Mo. 186; Sitton v. Shipp, 65 Mo. 297. The statements of the assignor made after parting with his title are inadmissible against the assignee.-- Moore v. Wingate, 53 Mo. 398. The note and deed of trust in the hands of Julia Dolan created an equitable charge upon the property.-- Robinson v. Urquhart, 12 N. J. Eq. 515; Rockwell v. Hobby, 2 Sandf. Ch. 9; Griffin v. Griffin, 18 N. J. Eq. 104; Welsh v. Usher, 2 Hill Ch. 167.T. J. ROWE, for the respondents: A party to a contract and suit may be called to testify on behalf of the opposite party, though the other party to the contract be dead.-- Loker v. Davis, 47 Mo. 145; Poe v. Domec, 54 Mo. 124; Rev. Stats., sects. 4010, 4012, 4016, 4017.

HAYDEN, J., delivered the opinion of the court.

This is an action in the nature of a bill in equity brought by the widow and heirs-at-law of James Dolan, for the purpose of having cancelled a note secured by a deed of trust upon real estate, on the ground that the defendants had no title to the note, and that the note has been paid. James Dolan died in May, 1876, seized in fee of the real estate upon which the note was originally secured. In January, 1872, the defendant Lunt, who then owned the real estate, had made the note and deed of trust to secure the payment of $500 which he owed. By deed of date the 10th of August, 1872, Lunt conveyed the real estate to Dolan. At the same time Lunt delivered the note and deed of trust to Dolan, for the purpose of protecting the property from a creditor of Lunt's, who held a judgment against the latter. Lunt testified to the effect that as this judgment was outstanding against him, he gave the note and the deed of trust to Dolan, who was to give the papers up as soon as the judgment was satisfied. The judgment was afterwards satisfied, and Lunt endeavored to get the note and deed of trust from Dolan. There was testimony to the effect that Dolan said in the presence of his wife that the note belonged to Lunt, and that if anything happened to him she should give the note to Lunt. Lunt made further attempts, but did not get the note. Dolan died, and the note came into the possession of Julia Dolan, one of the present defendants, and the mother of James Dolan. She testified that she got the note from her son nearly two years before his death. The circumstances under which she obtained possession of it did not appear.

We think that, upon the evidence, the question is not presented whether the right arising from the deed of trust merged in the fee-simple estate of James Dolan. As the basis of any merger, the note secured by the deed of trust must have been legally transferred to Dolan. A mere holding of the paper by Dolan, or by the defendant Julia Dolan, does not necessarily imply title. The testimony shows what this custody of the note was, and the purpose for which the papers were given to James Dolan. He was to hold them to keep the judgment creditor off until the judgment was paid. This was the understanding. It does not appear that he ever claimed title, or claimed to be able to...