Lippold v. Held

• Decision Date: 31 October 1874
• Citation: 58 Mo. 213
• Parties: MATHIAS LIPPOLD, Defendant in Error, v. JOHN HELD, Plaintiff in Error.
• Court: Missouri Supreme Court

58 Mo. 213

MATHIAS LIPPOLD, Defendant in Error,

v.JOHN HELD, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Warren Circuit Court.

Theo. Bruere, for Plaintiff in Error.

I. Defendant in error, himself, at the time he returned the original note to plaintiff in error, wrote on the back of it, “this note is void,” thus showing that by the new note he intended that the $2,000 was considered paid. There could be no substitution for a paid note.Dryden & Dryden and L. J. Dryden, for Defendant in Error.

I. The taking of a new note, and the surrender and giving up of the old one, did not per se operate as a discharge of the lien of the deed of trust. The new note did not operate as a payment and extinguishment of the original debt, unless such was the clear intention of the parties. (Thornton vs. Irwin, 43 Mo., 162; McDonald vs. Hulse 16 Mo., 503; Hilliard Mort., ch. 17, § 4 and notes; McCormick vs. Digby, 8 Blackf., 99; Pomeroy vs. Rice, 16 Pick., 22.)

WAGNER, Judge, delivered the opinion of the court.

From the record it appears, that on the 7th of June, 1868, the defendant made to the plaintiff his note of that date for $2,000, payable twelve months after date, with interest at six per cent. per annum. To secure the payment of the note, defendant and his wife executed a deed of trust, by which they conveyed certain lands to Mathias Gerster, in trust, conditioned that if the sum of money specified in the note, with interest, should be paid, when due, then the deed should be void, otherwise Gerster should proceed to sell the land, and out of the proceeds pay whatever remained due on the note.

Afterwards, about the 7th of July, 1872, defendant sold part of the land to Mathias and Henry Gerster, and by his direction the Gersters paid the purchase price of the land so bought by them to the plaintiff, who received the same, and consented that as to the part of the land bought by them, the lien should be released; and the purchase price so paid was applied on the $2,000 note. After such application there remained a balance due and unpaid upon the note of $960, for which defendant gave plaintiff a new note of that amount, payable to his order one day after date, with interest at the rate of ten per cent. per annum. Defendant at the same time took up the old note. The parties at the same time had a settlement, in which it was found that defendant owed plaintiff on account in the sum of $73.70, for which he gave another and distinct note of that amount.

The above facts were set forth in the plaintiff's petition, and it was charged that the new note of $960 was a part of the original debt of $2,000, having been simply substituted for the amount remaining unpaid on the old note, and that it was the intention of all parties, when the $960 note was so substituted, that it should be and remain secured by said deed of trust upon that part of the land, which had not been already sold to the Gersters; and, as the same was due and unpaid, prayed that it might be declared a lien upon the land so unsold, and that it might be sold to satisfy the note and interest.

To this petition defendant answered, admitting the principal facts stated in the petition, but he claimed that the new note for $960 was not given in substitution of the balance on the first note, but in payment and satisfaction thereof, and that it was agreed between him and plaintiff, when plaintiff gave up the $2,000 note to him, that he thereby relinquished his lien under the deed of trust for such balance on all of the land.

Evidence for both parties was heard by the court, and a decree rendered substantially as prayed for in the petition.

The plaintiff testified that in the taking of the new note of $960, it was not intended to release the lien of the deed of trust, but only to have more interest for the balance, then long past due, of which he had been deprived of the use, and that in consequence thereof he had to borrow money at ten per cent., and that defendant agreed to pay the higher rate of interest for forbearance of suit on the note. He further testified that no release was spoken of at the time the new note was given, and none actually made, but that on the contrary it...