Johnson v. Johnson

• Decision Date: 30 April 1884
• Parties: JOHNSON, Appellant, v. JOHNSON et al.
• Court: Missouri Supreme Court

81 Mo. 331

JOHNSON, Appellant,

v.JOHNSON et al.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

J. D. Shewalter for appellant.

A suit may be brought to foreclose a mortgage, although the debt secured thereby is barred by the statute of limitations; after the lapse of ten years there is a presumption of payment only, but this presumption may be repelled by proof of non-payment. Chouteau v. Burlando, 20 Mo. 482. A note may be barred by limitation and yet the mortgage securing it may be enforced against the land. Cape Girardeau v. Harbison, 58 Mo. 90. There was a recognition of the mortgage within ten years which repels the presumption of payment. McNair v. Lot, 34 Mo. 285. The statute of limitations is inapplicable, because the replication set up a new promise in writing which the proof sustained.

Alexander Graves for respondent.

MARTIN, C.

This was a suit to foreclose a mortgage, and was commenced July 14th, 1880. The debt of the mortgage was evidenced by a promissory note, dated February 11th, 1860, signed by Albert G. Johnson, as principal, and David Johnson, as surety, payable one day after date to _____ Ridings and Martin, in the sum of $372.98, and bearing interest at the rate of ten per cent per annum. The mortgage was of the same date with the note, which is described therein, and is conditioned that Albert G. Johnson shall pay the note, together with all interest, according to its tenor and effect. This mortgage was executed and delivered to David Johnson, the plaintiff, by Albert G. Johnson, who was his brother, and covered forty acres of land.

It is alleged in the petition that the plaintiff paid off the whole of this note, and that only $442.55 have been repaid by the principal debtor, leaving a balance still due of several hundred dollars. Albert G. Johnson died March 2nd, 1880, and the suit is against his widow and daughter as heirs in respect to the land proceeded against. By death of the widow since appeal, the suit has abated as to her.

The defendants, by separate answers, make general denial of the facts of the petition, and plead the statute of limitations in defense. The plaintiff, by way of replication, alleges that Albert G. Johnson, on the 20th of March, 1871, paid on the debt the sum of $442.55, and within ten years before commencement of suit.

After the evidence relating to the issues had been submitted, the court found in favor of defendants, on the ground, presumably, that the right of action had been barred.

There is no conflict in the testimony about the payment of the note by plaintiff. On the 26th of January, 1863, he paid $200 to one Carrol, who was the holder of the note at that time, which payment was evidenced by an indorsement to that effect on the note, as well as by a separate receipt. Afterward, in February or March, 1863, the plaintiff paid the balance of the note, amounting to about $300, as sworn to by an eye witness. The note was then delivered to plaintiff. It appears from the evidence that in 1871, a partial settlement, or ascertainment of mutual indebtedness took place between the two brothers. David had become indebted to Albert for the price of forty acres of land in a sum which is not precisely stated, while he held against him this note, which was still running on unpaid. It was ascertained at this settlement that after allowing Albert for the land purchased from him, he would remain indebted on the note in the sum of about $400. David desired to have his indebtedness for the land credited on the note, and Albert wanted him to take for the balance due him, the land conveyed by the mortgage. But David was unwilling to do this, and expressed a desire that Albert should go on and live on it. Albert declined to allow the indebtedness of David to be credited on the note, but requested a separate note from him for the amount, so that each would hold a note against the other in the full amoun of his claim.

This was done by David executing and delivering a note for his indebtedness, and retaining the note in the mortgage as a demand against his brother and the land securing it. No credit on the note was entered, and no written memorandum of the transaction appears in evidence. No further payments, or recognition of the note appear, till long afterward in January, 1880. Albert was then subject to the illness which terminated in his death. David visited him with the view of obtaining a settlement of their mutual demands, taking along with him a Mr. Satterfield, who assisted at the settlement. According to the terms of this settlement, the note of David to Albert was produced by Albert, and it was agreed that it should be credited on the mortgage note, as of March 20th, 1871. The amount was ascertained to be $442.55. Accordingly the following memorandum was indorsed on the note and signed by Albert:

“March 20th, 1871.

Received on the within note $442.55. This credit of March 20th, 1871, includes the above erased credit and all other payments ever made by me on the within note.

ALBERT G. JOHNSON.

Attest: HENRY GOLDKILLER.”

This settlement was effected, and the memorandum made in January, 1880. The note held against David was delivered up and destroyed after the credit was entered. The $200 credit appearing upon the note as of January 26th, 1863, was erased because it was a credit to which Albert was not entitled, it having been paid by David to the holder of the note, when he was discharging his obligation as surety. The signature of Albert was witnessed by Mr. Goldkiller who came in before the settlement terminated. Albert died about three weeks after the settlement. There is nothing in the evidence to impeach the good faith and reasonableness of this settlement. The...