Ford v. Phillips

• Court: United States State Supreme Court of Missouri
• Writing for the Court: EWING
• Citation: 83 Mo. 523
• Parties: FORD et al., v. PHILLIPS et al., Appellants.
• Decision Date: 31 October 1884

83 Mo. 523

FORD et al.,
v.
PHILLIPS et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Karnes & Ess for appellants.

(1) The evidence shows that Mrs. Ford indorsed the note in suit and delivered it to her agent, F. H. Benson, and the Supreme Court will not disturb this finding. Royal v. Jones, 78 Mo. 403; McCullough v. McCullough, 31 Mo. 226; Siebert v. True, 8 Kan. 52. (2) The note was the property of Mrs. Ford and she had the right to transfer it; besides her husband consented to its transfer and for that reason it was valid. McLain v. Weidemeyer, 25 Mo. 364; Menkens v. Heringhi, 17 Mo. 297; Prestwick v. Marshall, 7 Bing. 565; Bank v. Joy, 41 Me. 568; Stevens v. Beal, 10 Cush. 291; Miller v. Delameter, 12 Wend. 433; Roland v. Logan, 18 Ala. 307. The husband's consent to the indorsement may be inferred from circumstances. Bishop on Married Woman, sec. 100, note. (3) When one of two innocent parties must sustain a loss caused by a third person, he who has enabled that person to commit the wrong must bear the loss. (4) Possession as to personal as well as real property, is so far a presumption of title that the burden of

[83 Mo. 524]

proof is on the party by whom such possession is assailed. Wharton on Ev., sec. 1331; Vastine v. Wilding, 45 Mo. 89; Baxter v. Ellis, 57 Me. 178; Rubey v. Culbertson, 35 Ia. 264. (5) The party in possession of a negotiable instrument is prima facie the owner of it. 31 Mo. 22. But if payable to order he is not such, unless indorsed as this was. 45 Mo. 89, supra. (6) Benson understood that his authority was to take the note, use it as his own, and account to her for the proceeds. This was the extent of his agency, as he claimed. He acted on this, and whether he exceeded his authority or not, her conduct was such that she cannot now be heard to complain. The note, with her indorsement, was transferred to White, August 13, 1877. In September following Mrs. Ford dismissed Benson as her agent, in charge of her business, and substituted her husband. As to her separate property, she had a right to appoint an agent. Story on Agency, sec. 6; Wilcox v. Todd, 64 Mo. 390; Hall v. Callaghan, 66 Mo. 316.

Pratt, Brumback & Ferry for respondents.

(1) The evidence fully justified the trial court in finding that the note was left with Benson solely for the purpose of collecting the interest and principal, and accounting to Mrs. Ford for it, whether the court may have been right or wrong in the opinion that Mrs. Ford did endorse the note, and that her signature was not a forgery. (2) Purchasers of notes or bonds past due take nothing but the actual right and title of the vendor. 1 Danl. Neg. Notes, sec. 724; Foley v. Smith, 6 Wall. 492; McKim v. King, 68 Md. 502; Wheeler v. Barrett, 20 Mo. 573; Livermore v. Blood, 40 Mo. 48. (3) The rule invoked by the counsel for the appellants “that when one of two innocent parties must sustain a loss caused by a third person, he who has enabled that person to commit the wrong must bear the loss,” holds only in cases of innocent holders into whose hands the note came in regular course of business before it became payable. Emerson

[83 Mo. 525]

v. Crocker, 5 N. H. 163; Wheeler v. Barrett, 20 Mo. 573; Foley v. Smith, 6 Wall. 492.

EWING, C.

The petition alleges that plaintiffs are husband and wife; that Mary J. Phillips was the wife of E. A. Phillips; that she owned in fee the real estate described in the petition, and that on July 25, 1874, the said Mary J. Phillips and her husband borrowed of said Anna M. Ford twelve hundred and fifty dollars, and executed to her their promissory note therefor, due in three years, bearing ten per cent. interest from date, and that they secured said note by a deed of trust, in the nature of a mortgage, on said real estate, in which one E. P. Nicholson was named as trustee; that interest on said note was paid to Anna M. Ford until January, 1877, and one year's interest beside, and that the balance of twelve hundred and fifty dollars, with interest from January 25, 1878, at ten per cent. was due to the said Anna M. Ford; that said Mary J. Phillips in February, 1880, died intestate; that there was no administration on her estate, and that Mabel Phillips and Carrie Phillips, her only children, and her sole heirs at law and as such became the owners of said land, subject to said deed of trust and courtesy of E. A. Phillips, and that both of said children are infants.

It further alleges that in August, 1877, one F. H. Benson, without the knowledge or consent of plaintiffs, or either of them, got possession of said note, and placed the same in the possession of C. J. White, who claimed to own the same; that neither of plaintiffs indorsed or transferred said note, and the same is owned by Anna M. Ford, and that White will not let plaintiffs have said note, but threatens to sell the land described in the deed of trust to pay the note, though he does not own the same, nor entitled to any money thereon; that the trustee, Nicholson, lives in Texas and he cannot be served by ordinary process; that the said note was not filed because held by said White, but the original deed

[83 Mo. 526]

of trust, which had been recorded in Book B, No. 6, page 419, Jackson county, Missouri, was filed with the petition, giving the said Anna M. a first lien on said land. The petition then prays the court to ascertain the amount due plaintiffs on said note; to compel White to produce and file the note; to decree payment of said note, and in default thereof, to direct a sale of said land to pay the same; to decree that White has no title to said note or any right to any money due thereon; to foreclose the deed of trust; to enjoin White from causing or procuring said land to be sold under said deed of trust; to appoint a guardian ad litem for the said infants, and for all other proper relief.

The trustee, Nicholson, answered and...