Doniphan v. Paxton

• Citation: 19 Mo. 288
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 January 1854
• Parties: DONIPHAN & BALDWIN, Appellants, v. PAXTON, Respondent.

19 Mo. 288

DONIPHAN & BALDWIN, Appellants,

v.PAXTON, Respondent.

Supreme Court of Missouri.

January Term, 1854.

1. A mortgage with power of sale provided that the money arising from a sale should be applied to the payment of the debts mentioned in the deed, and the surplus, if any, should be paid to the grantor or his order. At the foot of the deed was this memorandum, proved to have been made before execution, at the request of the grantor: “I also owe P. F. $400, and A. K. $200, with interest, which are to be paid and made liens with the above.” Held, the memorandum was to be taken as a part of the deed, and had the effect to make the demands of P. F. and A. K. liens upon the surplus.

2. Where P. F. proved an indebtedness to the amount secured by the deed, and claimed nothing more, a controversy between him and a subsequent incumbrancer, it was held immaterial whether the note presented by him as evidence of the debt imported on its face a valuable consideration or a gratuity.

Appeal from Platte Circuit Court.

This was a motion filed by Doniphan & Baldwin upon the report of William M. Paxton, trustee, appointed to manage the estate of John Florish, an imprisoned convict, under the tenth article of the act concerning “Practice and proceedings in Criminal Cases.” (R. C. 1845.) The trustee reported that the assets of the convict consisted of the proceeds of the sale of a tract of land amounting to $3000, and that he had allowed debts against the estate, to the amount of $4008.92, of which 3675.92 were liens on the land. Among the debts reported as liens was one to Bird, Doniphan & Rees, for $1000, secured by a mortgage with power of sale dated November 28, 1851, one to Peter Florish for $400, and one to A. Kern, for $212, secured by the same deed, and one to the appellants, Doniphan & Baldwin, for $600, secured by a mortgage of subsequent date. The motion was, to postpone the claims of Peter Florish and A. Kern, to the demand of Doniphan & Baldwin, and to disallow altogether the demand of Peter Florish.

On the hearing of the motion, the mortgage to Bird, Doniphan and Rees, with power of sale, dated November 28, 1851, was read in evidence. In this deed, it was provided that, in case of a sale, the proceeds should be applied, first, to the payment of the indebtedness of $1000 the grantees, “and, secondly, to the discharge of all liens then remaining on said land, and especially to the three judgments confessed by me in vacation (specifying them) which judgments and the amounts therein specified, I hereby authorize to be paid out of my said land, if not otherwise discharged by me, and the balance if any, to be paid over to me, or to my order and direction.” At the foot of his deed was the following memorandum, proved to have been made at the request of the grantor before execution and acknowledgment: “I also owe Peter Florish four hundred dollars, and Anthony Kern two hundred dollars, with interest, which are to be paid and made liens with the above.”

There was also read in evidence a note from John Florish and J Mettier, to A. Kern, for $212, dated September 13, 1851, payable six months after date, “for value received,” also a translated copy of a note in the German language, from John Florish to Peter Florish, which was in these words:

“Weston, October, 16, 1850.

The undersigned promises his son, Peter Florish, the sum of four hundred dollars, without interest, in two years from to-day, for his interest in my estate. Given as above.

JOHN FLORISH.”

A witness testified that the German word “erbtheil,” which was translated “his interest in my estate,” means the estate which the child in herits on the death of his parent.

There was evidence that John Florish was indebted to his son, Peter, for two years' labor, at the rate of $200 per annum.

The motion to postpone and disallow was overruled, and the debts to Peter Florish and Kern were ordered to be paid prior to the note to Doniphan & Baldwin. The latter appealed to this court.

A. Leonard, for appellants.

1. The memorandum at the foot of the mortgage deed does not constitute the debts embraced in it a lien on the mortgaged premises, for want of apt words to create such a lien. 2. $400 note to Peter Florish is without consideration--a gratuitous promise of a father to make an advancement to his child--not entitled to payment as a legal right, even against the father, much less against the father's creditors for value. Parol evidence is inadmissible to contradict the note and prove that it was for work done, and not an advancement as stated in the instrument itself. Mead v. Steger, 5 Porters' (Ala.) Rep. 503. Benedict v. Lynch, 1 J. C. R. 380. Woodbridge v. Spooner, 18 E. C. L. R. 198. 3. The debt allowed to Kern out of the proceeds of the mortgaged property, was a note given by Florish & Mettier for $212 and interest; and not the debt of Florish alone for $200, of which Doniphan & Baldwin had notice through the registry of the instrument that created it when they acquired their lien.

W. P. Hall, for respondent.

1. The note to Peter Florish shows on its face that it was given for a valuable consideration. It is expressed to be given for his interest in the estate of John Florish. If he had any such interest, either by deed or contract, the note was given for a valuable consideration. Besides, there was evidence to show that it was given for services, which was admissible....