Isler v. Egger

• Court: Missouri Supreme Court
• Writing for the Court: RYLAND
• Citation: Isler v. Egger, 17 Mo. 332 (Mo. 1852)
• Decision Date: 31 October 1852
• Parties: ISLER, Respondent, v. EGGER & GAUSNER, Appellants.

17 Mo. 332

ISLER, Respondent,

v.EGGER & GAUSNER, Appellants.

Supreme Court of Missouri.

October Term, 1852.

1. Where a defendant remains in possession of a lot sold to him by the plaintiff, it is no defense to an action on a note given for the purchase money, that the plaintiff, at the time of sale, had no title.

Appeal from Law Commissioner's Court.

E. Casselberry, for appellants.

D. W. Hill, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was an action on a promissory note, by plaintiff against defendants, before a justice of the peace. The plaintiff had judgment. The defendants appealed to the law commissioner's court, where, on a trial, the plaintiff again recovered judgment. The defendants then appealed to this court. The note was given for ninety-five dollars, payable twenty-one days after date. The defendants contend that the consideration of the note had failed, at least in part; that it was given for a house and lot in Carondelet; that plaintiff had no title to the same, and that they were not to pay unless the plaintiff made a deed to them for the lot. On the trial, the justice permitted the defendants to offer evidence showing the consideration of the note. The evidence was somewhat contradictory. It appears, however, that the plaintiff sold to Egger a house; some wood, ten or eleven cords; a heavy rope and irons; fishing tackle, clock, and garden vegetables. The proof about the plaintiff's ownership of the house and lot was contradictory. However, he sold and gave possession, and the defendant, Egger, still has possession.

The court gave the following instructions, among others:

“If the jury believe from the evidence, that the defendants made and executed the note sued on, upon a knowledge of all the facts, or the means of such knowledge, and without any fraudulent representations, on the part of this plaintiff, as to his title, or the value of the property sold and delivered as the consideration...