Mayes v. Robinson

• Decision Date: 14 November 1887
• Citation: 5 S.W. 611,93 Mo. 114
• Parties: MAYES and others v. ROBINSON.
• Court: Missouri Supreme Court

5 S.W. 611

93 Mo. 114

MAYES and others v. ROBINSON.

Supreme Court of Missouri.

November 14, 1887.

1. NEGOTIABLE INSTRUMENTS — BONA FIDE PURCHASER — FAILURE OF CONSIDERATION.

Plaintiff sought to have a promissory note canceled on the ground of failure of consideration. Held that, the note being in the hands of a bona fide purchaser for value before maturity, the consideration originally given for it could not be looked into.

2. SAME — NOTE SECURED BY DEED OF TRUST.

Defendant was the purchaser for value before maturity of a promissory note given in part payment of purchase money for land, payment of which note was secured by a deed of trust of the land, with power of sale. Plaintiff had purchased the land, and assumed payment of the note, and was subsequently ejected by virtue of a judgment of the probate court, and sought to have the note canceled for failure of consideration. Held, that the fact that defendant relied on the deed of trust did not vary the nature of the contract on the note, which was that its amount should be paid to any bona fide indorsee for value before maturity.

3. SAME — INDORSEMENT "WITHOUT RECOURSE."

The taking of a note "without recourse" does not in any way affect the rights of the indorsee against the maker.

Appeal from circuit court, Johnson county; NOAH M. GIVAN, Judge.

O. I. Houts, for respondent. Samuel P. Sparks and John J. Cockrell, for appellant.

BRACE, J.

In March, 1873, James C. Rogers died seized in fee of the 120 acres of land described in the petition, leaving surviving him his widow, Sarah J., (who afterwards intermarried with Fayette F. Payne,) and one child, Thomas, aged about two years. In October, 1876, said real estate, in a proceeding in the probate court of Johnson county, in which county the same was situate, was set off to said widow and child as a homestead. On the second day of November, 1876, the said Sarah J. sold, for the consideration of $1,500, and with her husband conveyed by general warranty deed, said real estate, to one Amanda E. Edwards. On the first of January, 1878, for the consideration of $1,650, the said Amanda E. Edwards sold, and with her husband conveyed by general warranty deed, said real estate to one Robert F. Dixon, who paid $720 of the purchase money in cash, and for the remainder executed his two negotiable promissory notes, — one for $130, payable on or before the first day of November, 1878; the other for $800, in words and figures as follows, to-wit: "On or before the first day of January, 1892, and for value received, I promise to pay, or cause to be paid, to Amanda E. Edwards or order, the just and full sum of eight hundred dollars, negotiable and payable without defalcation or discount, with interest at the rate of ten per cent per annum, to be paid annually. In case of default in the payment of said interest, the above note becomes due and payable. As witness my hand this first day of January, 1878. R. F. DIXON," — and to secure the payment of said two negotiable promissory notes the said Dixon on the same day executed a deed of trust in common form, with power of sale, to James R. Parrot, trustee.

The foregoing conveyances were all properly executed and acknowledged, and of record in Johnson county aforesaid, when on the eleventh day of August, 1880, the plaintiffs, being in possession of an abstract of the title of said real estate, showing as well such conveyances as said proceedings of said probate court setting off said land as a homestead, and who at that time were acquainted with the said Thomas Rogers and his mother, knew that said land had been set off to them as a homestead, and that said Thomas was a minor, and the son of said James Rogers, and that there was a controversy as to his interest in the land, purchased said real estate of said Dixon, who before that date had paid off the $130 note, and the accrued interest on the $800 note to January 1, 1880, and $50 of the principal thereof, paying said Dixon as the consideration for said real estate the sum of $1,050 in cash, and assuming the payment of the remainder due on said $800 note, and received from him a warranty deed, "subject, however, to a mortgage in favor of Amanda E. Edwards for eight hundred dollars, due in the year 1892, the same being credited with fifty dollars," which deed was duly acknowledged and recorded on said eleventh day of August, 1880, and plaintiffs went into possession of the premises. On the third of January, 1881, plaintiffs paid the interest on said $800 note for 1880. On the twenty-fourth of November, 1881, Sarah J. Payne, the mother of Thomas Rogers, died. On the twenty-fifth of December, 1881, plaintiffs paid the interest on said note to January 1, 1882.

At the February term, 1882, of the circuit court of Johnson county, the said Thomas Rogers, by his guardian and curator, instituted an action in ejectment against the plaintiffs to...