Knighton v. Tufli

• Decision Date: 31 October 1849
• Citation: 12 Mo. 531
• Parties: LOVEL KNIGHTON v. JOHN TUFLI.
• Court: Missouri Supreme Court

12 Mo. 531

LOVEL KNIGHTON

v.JOHN TUFLI.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM WASHINGTON CIRCUIT COURT.

FRISSELL, for Appellant.

1. The appellant insists that the court erred in sustaining the demurrer, and that the judgment should be reversed. The instrument is inartificially drawn, but it is manifest that by it the defendant is indebted to the plaintiff, and as it may be considered a note within the meaning of the statute, and as such assignable. It appears to be an attempt to combine a note and a mortgage in the same instrument. Both, or either, are assignable by statute. It is not, therefore, seen why a suit might not be brought in the name of the assignee. 2. This instrument contains the agreement of the parties, and is the only writing between them. Tufli is liable to pay, and the money or plank is coming to the plaintiff. 3. Neither the statute nor custom have established any particular form of a bond or note. The substance and legal effect of the instrument, must determine whether it be assignable or not.

COLE, for Appellee.

1. The plaintiff has misconceived his remedy. 2. The instrument sued upon is an equitable mortgage. Davis v. Clay, Ex'r, 2 Mo. R. 161. 3. This instrument is not assignable under our statute, so as to authorize an action by the assignee in his own name: 6 Mo. R. 509. 4. The declaration is all. The plaintiff should have averred that the debt has not been paid to the assignor. Keeton v. Scantland, Hardin, 149. 5. The instrument sued upon should be held a promissory note for property and assignable, then the common law action of debt is not the proper remedy, because the recovery in debt is in numero, and a judgment on a note for property could not be taken without a jury to find the damages.

RYLAND, J.

This is an action of debt brought by Lovel Knighton against John Tufli on the following instrument of writing: “Know all men by these presents, that I, John Tufli, have this day given Ammon Knighton a mortgage on the undivided half of a saw mill on Fouch and Renault creek, and do by these presents, grant and transfer to said Knighton all my right, title, interest and claim in and to said mill, and all the tract of land belonging to said mill place, formerly the property of Knighton & Lyon. This lien is given for the purpose of securing payment of the sum of three hundred and twenty-seven dollars and fifty cents, which payment is to be made in plank or lumber made at said mill, to be due one thousand feet each week, said mill can saw. Said debt to be discharged by plank delivered at said mill, at the rate...