Fitzgerald v. Barker

• Decision Date: 16 January 1883
• Citation: 13 Mo.App. 192
• Parties: JOHN FITZGERALD, Appellant, v. JOHN BARKER, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 192

JOHN FITZGERALD, Appellant,

v.JOHN BARKER, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1883.

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

Reversed and remanded.

EDWARD WHITE, for the appellant.

TAYLOR & POLLARD, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

It appears from the record that, by a deed of trust dated November 1, 1872, John S. Thomas and wife conveyed certain real estate to J. G. McClellan, as party of the second part and trustee, to secure George A. Rubleman, party of the third part, upon an indebtedness which is recited thus: “Whereas, the said parties of the first part stand justly indebted to the party of the third part in the sum of two thousand dollars, and for which said parties of the first part have delivered to party of the third part certain promissory notes described as follows, to wit: One note for the sum of two thousand dollars, payable two years after date, and four interest notes for one hundred dollars each, payable respectively in six, twelve, eighteen, and twenty-four months after date, all of said notes bearing even date herewith, executed by said John S. Thomas, for value received, to the order of himself, etc.” This deed was filed for record on November 13, 1872.

The testimony tends further to show that, by deed dated November 2, 1872, Thomas and wife conveyed the same real estate to the defendant. This deed was also filed for record on November 13, 1872, and contained the following stipulations:--

“The said parties of the first part hereby covenanting that they will warrant and defend the title to the said party of the second part, his heirs and assigns, against the lawful claims of all and every person or persons whatsoever claiming or to claim the same or any part thereof, excepting against the following named deed of trust notes on the within described property, to wit: Two notes of two thousand dollars each, payable two years after date, and eight interest notes for one hundred dollars each, payable respectively at six, twelve, eighteen, and twenty-four months after date, all of said notes being made by said John R. Thomas, and payable to his own order, which party of the second part assumes and agrees to pay.”

The plaintiff, claiming as holder of the notes described in this deed, sues to enforce payment against the defendant, by reason of his assumption expressed therein. There was testimony tending to show that the plaintiff did not acquire the notes until after the filing of the deeds for record, and that he then received them from Thomas, in part payment of a debt. The circuit court declared that, on the whole case, as made, the plaintiff could not recover.

This case has been here before. (4 Mo. App. 105.) It was then held by this court, reversing the judgment of the circuit court, that an assumption by the grantee of mortgaged lands, of the mortgage indebtedness, could be enforced against him by the holder of the mortgage claim, as a personal obligation; and in effect, that this is true, even though the deed containing the stipulation be not signed by the grantee, though the claimant be not cognizant of the promise, when made, and though there be no actual privity of contract between him and the grantee making the promise. Our judgment was affirmed by the supreme court. (70 Mo. 685.)

It is now insisted for the defendant that his promise, if effectual for any purpose, was for the benefit of Rubleman only, the beneficiary in the deed of trust, and that the plaintiff can maintain no action without an assignment from that beneficiary. This argument seems to ignore the facts in the case, not less than the well-understood attributes of negotiable instruments. The defendant here assumes and agrees to pay, not the mortgage, nor the then holder of the mortgage, but the notes described in the deed to him. The notes are said to be secured by a deed of trust or mortgage, against which the grantor refuses to covenant. But this is a mere incident, and does not change the identity of the subject of the promise. A promise or undertaking, in whatever shape, to pay a negotiable note, is not made for the exclusive benefit of the...