McLeod v. Snyder

• Decision Date: 23 May 1892
• Citation: 110 Mo. 298,19 S.W. 494
• Court: Missouri Supreme Court
• Parties: McLEOD v. SNYDER.

19 S.W. 494

110 Mo. 298

McLEOD v. SNYDER.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

ACTION ON NOTE — JOINT PAYEES — PARTIES — PRICE OF LAND.

1. In an action against the maker on a note made to two joint payees, it is no defense that the interest of one of the payees was transferred to third parties, where such third parties before suit transferred such interest to the plaintiff the other joint payee. Love v. Fairfield, 13 Mo. 301; Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 23; Loomis v. Robinson, 76 Mo. 488, — distinguished.

2. A joint bond for title was made by two equal owners of land, and notes given by the purchaser for the price. Afterwards the interest in the notes of one of the payees was transferred to the other, who sued thereon, tendering a deed of his half interest in the land. Held, that he could not recover, not having tendered the entire title pursuant to the bond.

3. In such case the refusal to make plaintiff's co-obligor a party was error.

Error to circuit court, Chariton county; G. D. BURGESS, Judge.

Action by William O. McLeod against James A. Snyder on two promissory notes. Plaintiff had judgment, and defendant brings error. Reversed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

William O. McLeod and Benjamin H. Shipp, by a conveyance made to them, having become the joint and equal owners of a certain tract of land in 1881, sold the same in May, 1883, to James A. Snyder, the defendant, for the sum of $5,000, and contracted to make him a good title, he to pay $500 cash, which he did, executed his four several promissory notes to McLeod and Shipp jointly, payable December 1, 1883, for $500, and the other notes for $1,333.33 each, payable, respectively, December 1, 1884, December 1, 1885, and December 1, 1886. McLeod and Shipp made Snyder a title bond, and he afterwards was placed in possession of the land by McLeod and Shipp, and paid off the two notes first falling due, and made valuable and lasting improvements on the premises. Shipp transferred his interest in the notes to parties who subsequently transferred the same to McLeod. After transferring his interest in the notes, Shipp died leaving a widow and one child surviving him. In 1887 McLeod brought his ordinary civil action on the two promissory notes yet remaining unpaid, in which he alleged the transfer of Shipp's interest in the notes to third parties, and their transfer to him. The first count of the answer of the defendant admitted the execution of the notes, but denies the other allegations of the petition. The second count sets up the contract of sale as aforesaid, the delivery of the purchase notes, the execution by McLeod and Shipp of the contract of sale, and the entry and taking possession of the land by defendant on the faith of the contract, and also that a clerical mistake had occurred in the contract, and that defendant had tendered to plaintiff and paid into court the balance of the purchase money due, but alleges that plaintiff refused to accept said money or to make defendant a deed complying with the contract. The answer also sets up that Shipp was in his lifetime seised of the undivided one half of the land in controversy, but had died leaving a widow and one child, who survived him, and asks that they be brought in and made parties to the suit. The answer also renews the tender theretofore made, and prays that plaintiff be compelled to procure and deliver to defendant good and sufficient deeds to the land, before he be allowed to prosecute his suit, and for general relief. The reply admits the execution of the notes to plaintiff and Shipp jointly, and that defendant took possession of the land as the purchaser of plaintiff and Shipp; admits the tender of the balance of the purchase money; but denies a refusal to accept it; and then alleges the tender to defendant of a warranty deed of the land executed by plaintiff and wife, and the demand of the purchase money, which was refused, etc. Upon the evidence adduced the court gave the following declaration of law, at the instance of the plaintiff: "The plaintiff moves the court to declare the law, by way of demurrer to defendant's evidence, that under the pleadings, and all the evidence offered, the plaintiff is entitled to judgment for the amount of the notes sued on." Among the declarations of law given at the instance of the defendant was this one: "It appears from the evidence in this case that at the date of the execution and tender by plaintiff to defendant of a deed to the lands in controversy, as read in evidence, the plaintiff was only entitled to an undivided one half of said lands, and the court therefore declares that said deed could not operate as a conveyance of the legal title to the whole." The court found the issues for the plaintiff, and gave judgment accordingly, and defendant brings this case here on error.

Louis Benecke, S. C. Major, and Crawley & Son, for plaintiff in error. A. W. Mullins and Tyson S. Dines, for defendant in error.

SHERWOOD, C. J., (after stating the facts.)

1. There is nothing in the point that Shipp transferred this one half in the notes to third persons, and that they transferred the same to McLeod. If a debtor chooses, he may make his notes to as many persons as he pleases, and each one of these payees may transfer his interest therein to another person; otherwise each payee might have an unmarketable title on his hands. The rule relied on only forbids the transfer by a payee of portions of his interest to another or different payee, and thus render the nonconsenting debtor liable to a number of suits and to additional costs. The debtor, of course, may contract that this debt shall be paid as integer or that it may be paid in fractions; but where he contracts in the latter way he cannot object if the payee or payees transfer this fraction or fractions to some one else. The cases of Love v. Fairfield, 13 Mo. 301; Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 23; Loomis v. Robinson, 76 Mo. 488, — do not apply to this case.

2. The defendant was right in asking and the court wrong in refusing to make the heir at law of Shipp a party to the suit, and to have him brought in, as the title to one half of the land descended to him, and had to be divested out of him before a good and complete title could be had to the land. In no other way could a perfect title be obtained; and it was the duty of the court, under the statute, if there was a defect of parties, to have secured a complete determination of the controversy by having them brought in by appropriate procedure. Hayden v. Marmaduke, 19 Mo. 403; Butler v. Lawson, 72 Mo. 227.

3. The court below, it seems, misconceived the theory of the defendant's answer. He was not resisting the payment of the purchase money, nor any part thereof. He had already paid nearly half, and showed in the most pronounced manner his entire willingness, nay his anxiety, to pay the rest. He was simply insisting upon his rights under the contract of sale, the chief of which was a perfect title to the land, — to the whole title, and not to a half title. He had the right to get what he bargained for before he paid the residue of the purchase price, and under the conditions of the title bond the execution and...