Keim v. Vette

• Decision Date: 11 March 1902
• Citation: 67 S.W. 223,167 Mo. 389
• Parties: KEIM v. VETTE, Appellant
• Court: Missouri Supreme Court

67 S.W. 223

167 Mo. 389

KEIM v. VETTE, Appellant

Supreme Court of Missouri, Second Division

March 11, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Collins Jamison & Chappel for appellant.

(1) The affidavit attached to the petition in this case is not in accordance with the statute nor the rules of pleading applicable to such cases. Sec. 4463, R. S. 1899; Pattison's Forms for Missouri Pleading, sec. 458. (2) The respondent, Philip Keim, having placed the Stewart note for $ 7,000 in the hands of Charles Kuhn, clothed him with the evidence of ownership thereof, and he is estopped from claiming the same from Vette, who had no notice at the time he acquired the note that Keim had any interest in it. Lee v. Turner, 89 Mo. 489; Dymock v Railroad, 54 Mo.App. 400; Bank v. Bank, 71 Mo 183; Neuhoff v. O'Reilly, 93 Mo. 164; Randolph on Commercial Paper, sec. 391; 18 Eng. and Am. Ency. Law (1 Ed.), 641; Dows v. Kidder, 84 N.Y. 121; Leigh Bros. v. Railroad, 58 Ala. 165; McNeal v. Bank, 46 N.Y. 325; Combs v. Chandler, 33 Ohio St. 178; Cosdsby v. Vandenberg, 101 U.S. 572; Shaw v. Railroad, 101 U.S. 565. (3) "It is settled by a multitude of decisions that the right to plead usury is a privilege personal to the debtor." The defense has been compared to that of infancy. 27 Am. and Eng. Ency. Law (1 Ed.), p. 949; Ransom v. Hayes, 39 Mo. 445; Benseley v. Homier, 42 Wis. 631; Lee v. Feamster, 21 W.Va. 108. (4) The more recent decisions of the Supreme Court of the State of Missouri in construing the force and effect of the act of the General Assembly of this State, approved April 21, 1891 (Laws 1891, p. 170), are to the effect that the right to plead usury "is a privilege conferred by statute upon the debtor alone, or upon him and his privies in estate or blood, but is unavailing to a stranger or creditor." Griebel v. Imboden, 158 Mo. 642; Vette v. Geist, 155 Mo. 34; Hill v. Taylor, 125 Mo. 331; Ransom v. Hayes, 39 Mo. 445; Bank v. Bank, 123 Ill. 510; Green v. Kemp, 13 Mass. 515; Jackson v. Dominick, 14 Johns. 435; Loyd v. Scott, 4 Pet. 205; Bank v. Com. Warehouse Co., 49 N.Y. 642; Frumbro v. Blizzard, 6 Gill (N. J.) 18; Pinnell v. Boyd, 33 N.J.Eq. 600; Jones on Mortgages (5 Ed.), secs. 644 and 1493; Sands v. Church, 6 N.Y. 347; Maher v. Lanfrom, 86 Ill. 513; Tyler on Usury, p. 403. (5) It is a well-established rule of law that a stranger to the transaction can not avail himself of the plea of usury. See cases above cited and also Webb on Usury, sec. 366, and Tyler on Usury, p. 403. (6) A purchaser of the equity of redemption can not plead usury. Webb on Usury, sec. 374; Loan Ass'n v. Heider, 55 Iowa 424; Ins. Co. v. Olmstead, 52 Iowa 354; Bank v. Bank, 123 Ill. 510; Mason v. Pierce, 31 N.E. 503; Cramer v. Lepper, 26 Ohio St. 59; Savings Institute v. Copland, 32 N.W. 95; Cain v. Gimon, 36 Ala. 168; Sellers v. Botsford, 11 Mich. 59; Bank v. Kimmell, 1 Mich. 84; Bank v. Collins, 27 Conn. 142. (7) It is well established by overwhelming authority and decisions of the courts of various States that a creditor can not avail himself of the plea of usury. Benseley v. Homier, 42 Wis. 631; Lee v. Feamster, 21 W.Va. 108; Baskin v. Calhoun, 45 Ala. 582; Barbour v. Tompkins, 31 W.Va. 410; Miller v. Clark, 37 Iowa 325; Adams v. Robertson, 37 Ill. 45; Carmichael v. Bodfish, 32 Iowa 418; Harbinson v. Harrell, 19 Ala. 753; Reading v. Weston, 7 Conn. 409. (8) An action in replevin is one ex delicto and not upon contract. Hecht v. Heimann, 81 Mo.App. 370. (9) Keim was not at the time of the institution of this suit a privy of Kuhn. There was neither privity of estate, blood nor contract between them, consequently Keim could not plead usury in this case. Bouvier's Law Dictionary, "Privy and Privity;" 19 Am. and Eng. Ency. Law (1 Ed.), p. 156; Burrell's Law Dictionary, "Privity;" Greenleaf on Evidence, sec. 189; Black's Law Dictionary, "Privies" and "Privity;" Anderson's Law Dictionary, "Privity;" Webster's Dictionary, "Privity;" Winfield on Adjudicated Words and Phrases, "Privy;" Cohn v. Osgood, 15 Barb. (N. Y.) 588.

Carl Otto for respondent.

(1) Repleyin may be maintained without affidavit. Garth v. Caldwell, 72 Mo. 622; Pattison, Mo. Code Plead. (1901), sec. 881; Keen v. Munger, 52 Mo.App. 663; Bingham v. Morrow, 25 Mo.App. 448; Hamilton v. Clark, 25 Mo.App. 432; 20 Am. and Eng. Ency Law (1 Ed.), p. 1081. (2) There was privity and it was conceded at the trial. State v. St. Louis, 145 Mo. 567; State v. Johnson, 123 Mo. 55; Haley v. Bagley, 37 Mo. 365; Crispen v. Hannavan, 50 Mo. 419. Keim could redeem from said pledge, not because he was a stranger, not because there was no privity, but because he was the owner, and because there was privity of estate.

OPINION

GANTT, J.

The facts over which this litigation arose are few and simple.

Philip Keim, a citizen of St. Louis, a butcher by trade, in December, 1895, bought for full value before maturity one principal negotiable promissory note for $ 7,000 and ten interest notes for $ 210 each, all executed by the J. W. Stewart Real Estate Company, bearing date October 11, 1895, and payable to the order of Charles Kuhn, and by him indorsed in blank, and received the same into his possession from Kuhn.

These notes were secured by a first lien on three brick houses in the city, and were worth their face and interest. Afterwards, when one of the interest notes fell due, Keim, who kept the notes and deed of trust in a wrapper, took them all together to collect the interest as instructed by Kuhn, to Kuhn's real estate office, and having a number of purchases to make and having known Kuhn for some three years and having confidence in him, said to Kuhn, "I will leave these papers here till to-morrow," and Kuhn said, "All right. I will give you a receipt for them," and thereupon wrote and handed this receipt.

"St. Louis, 4-14-'96.

"Received of Philip Keim one deed of trust for seven thousand dollars and nine interest notes each $ 210.

"Charles Kuhn."

Kuhn then in Keim's presence put the bundle of papers in his office safe.

Keim called the next day for his papers and was informed Kuhn was temporarily out of the city. He went three times, and about that time it was noised abroad that Kuhn had decamped, and thereupon he brought replevin for said papers, making Kuhn and John H. Vette defendants.

An order of delivery was made, and the sheriff took said notes from defendant Vette. Kuhn was served by leaving a copy of the writ at the usual place of abode of said Kuhn with a member of his family over the age of fifteen years, said Kuhn being the last defendant served. Kuhn has never since returned to the State. The petition stated the ownership by plaintiff of the notes and a specific description of them; that they were secured by deed of trust and described the mortgaged property; that plaintiff was entitled to the possession of the notes; that they were of the value of $ 7,000 and were wrongfully detained by defendants Vette and Kuhn; that they had not been seized under any process, execution or attachment against the property of plaintiff; that his cause of action had accrued within one year prior to the commencement of the suit and he was in danger of losing his said property unless it was taken out of the possession of the defendants, and prayed judgment for plaintiff.

To the petition was appended this affidavit:

"State of Missouri,

City of St. Louis.

"Philip Keim, above named, being duly sworn, on his oath says that all the matters and things and each of them set forth in the foregoing statement are true. Philip Keim.

"Subscribed and sworn to before me this twenty-seventh day of April, 1896.

"My term expires June 28, 1897.

"(Seal) Enrique Parmer,

"Notary Public, St. Louis, Mo."

Kuhn made default. Vette's answer, omitting caption, was as follows:

"Comes now the above defendant and admits that at the time of the institution of this suit he was in possession of the notes and deed of trust mentioned in plaintiff's petition, having lawfully and in good faith acquired the same for value from the holder thereof, as security for a loan then and there made to such holder for $ 5,500 and eight per cent interest, without any notice of plaintiff's pretended claim thereto; and each and every other allegation in plaintiff's said petition contained, this defendant denies generally, and this defendant therefore asks judgment for the return of said notes and deed of trust to him, for damages for the detention thereof and for costs."

To which plaintiff replied, as follows:

"Now comes the above-named plaintiff and for a reply to the new matter contained in the answer of defendant says that he denies each and every allegation therein contained.

"Further replying to the new matter aforesaid and in said answer contained, this plaintiff says that Charles Kuhn had no title at the time or any other time to said paper and could not transfer any, all of which defendant well knew or by the exercise of ordinary diligence could have learned prior to and at the time of his alleged purchase.

"Further replying this plaintiff says that whatever transaction the defendant had with said Kuhn whereby he wrongfully obtained from said Kuhn the possession of the paper in the petition described was a loan and not a sale. That then and there said loan was for the sum of fifty-five hundred dollars, and that defendant was by the terms of said loan to receive and charge interest for a greater amount than that allowed by law, and said loan was at the time when made and is affected with usury, and was and is illegal, and defendant has and had no right to the possession of said paper.

"Wherefore and by reason of the premises, plaintiff prays for judgment for the possession of the...