Johnson v. Colton

• Decision Date: 12 March 1895
• Citation: 30 S.W. 116,127 Mo. 473
• Parties: Johnson v. Colton et al.; Colton, Appellant
• Court: Missouri Supreme Court

30 S.W. 116

127 Mo. 473

Johnson v. Colton et al.; Colton, Appellant

Supreme Court of Missouri, First Division

March 12, 1895

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Boyd & Murrell for respondent.

(1) The court erred in permitting witnesses to repeat what defendant Thompson had said to them, especially witness John M Johnson, for reasons: First. That Thompson had parted with all interest he ever had in the notes and deeds of trust before his statements testified to were made and he could not then impress the title of his assignee as fraudulent. He was not in possession. Second. There was no joint interest between defendants Colton and Thomas, and no evidence tending to show a conspiracy as charged in the petition, and the declarations of Thompson were made long after, and not in furtherance of any object of, such alleged conspiracy. Greenleaf's Evidence, secs. 111, 174; Albert v Besel, 88 Mo. 154; Farrar v. Snyder, 30 Mo.App 98, 99; Holliday v. Jackson, 31 Mo.App. 265; Strotmeyer v. Zeppenfeld, 28 Mo.App. 273; Hambright v. Brockman, 59 Mo. 52. (2) Even if it be the fact that plaintiff was drunk when he executed the deed of trust of December 6, the deed of trust is still good in favor of a bona fide purchaser of the note before maturity. Bradwater v. Dame, 10 Mo. 277; Eastin v. Perry, 29 Mo. 96. And good, even if no consideration. Burrows v. Alter, 7 Mo. 24; Blount v. Spratt, 113 Mo. 55.

L. W. Scott, James Cooney and W. D. Bush for respondent.

OPINION

Brace, P. J.

This is an action in the nature of a bill in equity, instituted in the circuit court of Saline county against John B. Colton, Samuel C. McPherrin, W. A Thompson and the Farmers' and Mechanics' Bank of Galesburg, Illinois, to set aside and cancel two promissory notes, one dated the fifth day of December, 1889, for the sum of $ 1,383.80, and the other, dated the sixth day of December, 1889, for the same amount, both payable to W. A. Thompson; also two deeds of trust given to secure the same, of corresponding dates, executed by the plaintiff, and a trustee's deed, executed in pursuance of a sale made under the second of said deeds of trust. The finding and decree of the circuit court was, in substance, as follows:

"That the plaintiff, M. C. Johnson, executed the promissory note and deed of trust of December 5, 1889, and on the sixth day of December, 1889, executed the note and deed of trust of date December 6, 1889; that both said notes and deeds of trust were by the said W. A. Thompson, soon after the execution, assigned and transferred to defendant, John B Colton, and that the note and deed of trust of December 6, 1889, was assigned thereafter by the said John B. Colton to the Farmers' and Mechanics' Bank, of Galesburg, Illinois. That on the tenth day of January, 1891, Samuel C. McPherrin, trustee in said deed of trust of date December 6, 1889, by authority of a notice given under the powers of said deed of trust, sold, at public sale, the property described in said deed of trust to pay the promissory note therein described; that the property sold was purchased by John B. Colton for the sum of $ 1,466.70 and said trustee executed to John B. Colton a trustee's deed for said real estate, and the same was recorded on the twenty-third day of February, 1891.

"And the court further finds that said deeds of trust and notes were executed by the plaintiff by signing his mark, and under the belief that he was securing thereby a loan of $ 300 from said John B. Colton. That the said plaintiff is unable to read or write and at the time of the execution of said notes and deeds of trust he had no knowledge of their contents that h...