Hayden v. Cornelius

• Decision Date: 31 January 1849
• Citation: 12 Mo. 321
• Court: Missouri Supreme Court
• Parties: HAYDEN v. CORNELIUS, LAMME & PAYNE.

12 Mo. 321

HAYDEN

v.CORNELIUS, LAMME & PAYNE.

Supreme Court of Missouri.

January Term, 1849.

APPEAL FROM BOONE CIRCUIT COURT.

TODD, for Appellant.

1st. It was error in the court to admit the parties, Woods and Todd, makers of the trust deed, to testify, so as to change the terms of the deed, and diminish Hayden's interest in the funds secured thereby, and increase their own. 1 Mo. R. 214; 4 Mo. R. 22; 1 Greenl. 455 to 460, §§ 386-9, 390-92. 2nd. The decree is erroneous, for, 1. The obligation to pay Caves' debt for Hayden's interest, was certain upon good consideration. 2. He is not proven to have agreed to any other contract than is made in that obligation. 3. He did not make himself a party in the deed of purchase or deed of trust, and the parties so understood it, and the testimony objected to does not prove any agreement by him with the trustees other than their express obligation. 3rd. Complainant is entitled to a decree for the whole debt and interest.

LEONARD, for Appellees.

1st. Hayden assented to the arrangement that was made between Cornelius and his other securities for their and his benefit, and cannot be allowed now to wrest the undertaking Payne and Lamme gave to Cornelius for him on the faith of that assent, to altogether a different purpose and thus compel Payne & Lamme to pay him money as a mere gratuity, without any consideration whatever. 2nd. If Hayden could repudiate his assent to the terms of the trust created upon the property, and be allowed to stand in the shoes of Cornelius, he would then only be entitled to the same equity that Cornelius would be were he in court asking the specific execution of this undertaking of Payne & Lamme; and against Cornelius' equity to this relief, it would be a sufficient answer that the property he conveyed and warranted was incumbered to more than the amount of money now withheld, and which if forced out of the defendants by the decree of the court, could never be recovered back on account of Cornelius' insolvency, or if it could, then only by compelling our citizens to seek redress of Cornelius in a foreign State. 3rd. Woods and Todd were both competent witnesses for the defendants. They were not parties to the suit nor interested in the result. A decree directing the defendants to pay the whole sum specified in their undertaking to Cornelius, would neither increase or diminish their portions of the trust fund--that was settled by the deed of trust, and the personal liability of the defendants to pay the money now sued for has nothing to do with the interest of the witnesses in the trust property. 4th. The deed of trust and the judgments and executions given in evidence were competent testimony to establish the fact of their existence, and that fact was relevant to the controversy between the parties. 5th. If the decree made were reversed, no decree could be now made for the complainant for want of proper parties before the court. There was no service of process on Cornelius, nor any appearance by him, and the constructive notice by publication is insufficient.

NAPTON, J.

This was a bill in chancery. The facts which may be assumed from the bill, answer and exhibits, were these: About the 19th November, 1841, Cornelius, being on the eve of insolvency, and willing to secure certain persons who were his securities for large amounts, executed two conveyances to these securities for property which they consented to estimate at $10,500. The first conveyance was made to Payne, Woods, Lamme, J. W. Harris, C. R. Harris, Todd and Murrill, and embraced several tracts of land and town lots. The consideration of this deed was $7,500, and the deed contained the words grant, bargain and sell, and also a clause of general warranty. The second deed transferred some slaves, judgments, &c., for $3,000, secured to be paid by the grantees, who were the same persons in the first deed named. On the same day a third deed was executed by the grantees in the first two deeds to Payne and Lamme, as trustees to sell the property conveyed by the first deeds and appropriate rateably to the extinguishment of certain debts of Cornelius, for which the grantees were already responsible. This deed recited that in consideration of the sale by Cornelius, Payne, one of the grantees, had executed his obligation to pay $1,180 20 on a certain bond in which he was security for Cornelius, and Payne, Woods & Co., had executed their obligation to pay $1,299 on another bond in which they were securities, and so on enumerating all the different obligations which the securities who were grantees had given to extinguish a certain portion of Cornelius' liabilities. Among these it was recited that Lamme and Payne as trustees had executed their obligation to pay H. Cave $502 60 on a bond in which Joel H. Hayden stood security. In consideration of these obligations, Woods and wife, C. R. Harris and wife, J. W. Harris, Murrill and wife, and Todd and wife; conveyed the property to Lamme and Payne in trust to pay off the several sums thus enumerated to be due from Cornelius to his creditors. The obligation upon which the present suit is based, is the one executed by Lamme and Payne to pay off a portion of Cornelius' note to Cave, on which the complainant, Hayden, was security. This obligation is as follows:

“Know all men by these presents, that for and in consideration of the sale and conveyance of certain real and personal estate, by W. Cornelius and wife to us and others, we hereby bind ourselves and heirs, executors, &c., to pay the sum of five hundred and two dollars and sixty cents, on a certain bond given and executed by said W. Cornelius and Joel H. Hayden security to Henry Cave, and now being in suit in the Boone Circuit Court, and to save said Cornelius from the payment of said amount on said note and all interest arising thereon from this date, 19th November, 1841.

DAVID S. LAMME, Trustee,

MOSES U. PAYNE, Trustee.”

Hayden, the complainant, had been compelled to pay this note to Cave-- Cornelius was insolvent and a non-resident--and the object of the bill was to compel Lamme & Payne to pay the said sum of $502 60 and interest according to the tenor of this obligation, which Hayden, as security, considered himself entitled to the benefit of, in equity.

The answer of the defendants placed their defense upon two grounds. They assert that the complainant, although not present at the first meetings of the securities, was yet advised of the arrangements which had been agreed upon before they were consummated, and that he approved of and sanctioned them--that he fully understood that he was to share the fate of the other securities, and if the property conveyed to the trustces, did not bring the full sum of $10,500, then the securities were to lose ratably. They alleged that the deed of trust to Lamme & Payne was made as well for Hayden's benefit as for the benefit of the other securities therein named, and that they (Lamme & Payne) acted for hayden in signing the obligation they gave to Cornelius to pay off $502 60 on the Cave note. They declare that they called upon the complainant to give them some written acknowledgment of the transaction, but he refused to do so, and insisted on heir responsibility to him for the full amount of $502 60.

The answer and evidence further showed that the property conveyed by Cornelius was incumbered with judgments and mechanics' liens to the amount of two or three thousand dollars, which incumbrances the trustees were compelled to remove, in consequence of which the trustees did not realize more than three-fourths of the nominal value of the property. The trustees therefore insisted in their answer that Hayden must share the fate of the other securities under the deed of trust, and that they were not bound to pay him the whole amount of the $502 60 at the expense of the other securities, but only his ratable portion thereof.

Another position taken in their answer was, that if Hayden repudiated the trust...