Meyer v. Koehring
| Decision Date | 04 June 1895 |
| Citation | 31 S.W. 449,129 Mo. 15 |
| Parties | Meyer et al. v. Koehring et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Affirmed.
John W Booth for appellants.
(1) Evidence of a gift does not support an allegation of a transfer for valuable consideration. Hall v Knappenberger, 97 Mo. 509. (2) An allegation that the owner of a negotiable note, "for a good and valuable consideration by indorsement, in writing, assigned transferred and delivered" the note to plaintiff, is an allegation of a transfer for a valuable consideration. When the adjectives "good" and "valuable" are so joined in the description of a single consideration, they collectively mean that the consideration was not only valuable in its nature, but also full and adequate in fact. This is especially true as applicable to the stating part of a bill in equity, in which it is the duty of a suitor to make a clean breast of the true ground on which he demands such relief as can not be had in a mere court of law. (3) A court of equity, in examining evidence, will have regard to the situation of the parties with respect to the subject-matter of the action, and with respect to each other, in determining the sufficiency of the evidence to sustain a decree. (4) Upon the pleadings and evidence in this case the court should reverse the judgment of the circuit court, and enter a decree here for appellants, as prayed in their answer.
J. C. Kiskaddon for respondents.
(1) The case of Hall v. Knappenberger, 97 Mo. 509, cited by appellants, is not in point. In that case, there was a plea that the note was a gift, and the pleader attempted to sustain that allegation by introducing in evidence a note bearing an indorsement transferring it for "value received." In the case at bar the pleader alleges that the transfer of the note was for a good and valuable consideration, and sustains this allegation by introducing a note bearing an indorsement transferring it for "value received." (2) The production in court, by plaintiff, of the note, with the indorsement of payee thereon, purporting to transfer it for a valuable consideration to plaintiff, constituted plaintiff prima facie owner of the note. Fitzgerald v. Barker, 85 Mo. 13; Bank v. Wright, 53 Mo. 153; Ashbrook v. Letcher, 41 Mo.App. 369; Shirts v. Overjohn, 60 Mo. 305; 1 Daniels on Negotiable Instruments [4 Ed.], sec. 99. (3) A gift is as effectual to transfer the legal title, and is as irrevocable as a sale for value. 1 Parsons on Contracts [7 Ed.], 235; 8 Am. and Eng. Encyclopedia of Law, secs. 1309, 1322, 1336. (4) The variance, if any, is immaterial. Either a sale or gift transfers the legal title; and the transfer of the title is really the issue. Boone v. Stover, 66 Mo. 430; Bennett v. McCanse, 65 Mo. 194; Bank v. Leyser, 116 Mo. 51; Howard Co. v. Baker, 119 Mo. 397. (5) If there was a variance, it was such an one as not to constitute failure of proof. The legal title passed; the variance, if any, was in the mode of its passing. Defendants, having failed to take advantage of this variance, in the manner pointed out by the statute, waived it. Fisher v. Max, 49 Mo. 404; Wells v. Sharp, 57 Mo. 56; Brown v. Railroad, 50 Mo. 461; Clements v. Maloney, 55 Mo. 352; Bennett v. McCanse, 65 Mo. 194; Meyers v. Chambers, 68 Mo. 626; R. S. 1889, sec. 2096. (6) Parol evidence can not be admitted to vary the terms of the contract implied in an indorsement of a negotiable promissory note. 1 Daniels on Negotiable Instruments [4 Ed.], sec. 717, et seq.; Rodney v. Wilson, 67 Mo. 123; Lewis v. Dunlap, 72 Mo. 174. (7) A defendant can not allege that property was procured by fraud and without consideration, and then sustain such allegation by evidence of a gift. Priest v. Way, 87 Mo. 16. There is no evidence that plaintiff exercised any undue or improper influence over her mother to induce her to make the gift. Moore v. Moore, 67 Mo. 192. It is of no concern to the makers, if they owe the note, whether the payee sold it or gave it to the indorsee. The ownership of the note, and not how the title passed, is the only question of interest to the makers. Million v. Ohnsong, 10 Mo.App. 432; Bannister v. Kenton, 46 Mo.App. 462; Moore v. Candall, 11 Mo. 614.
This is a proceeding in equity for the purpose of having canceled a certain deed of release, executed by defendant Maria E. Koehring, to her codefendants, Clara M. and John H. Koehring, on the fourteenth day of November, 1892, releasing a certain deed of trust executed by said Clara M. and John H. Koehring on the twentieth day of February, 1892, to the plaintiff, Wehrmann, as trustee on certain lands therein described to secure the payment of two promissory notes for the sum of $ 832.50 each, executed by them to said Maria on said twentieth day of February, 1892, one payable one year after date, and the other payable in two years after its date, and for the foreclosure of said deed of trust. Plaintiff Lisette Meyer claims to be the owner and holder of the first described note.
In February, 1892, Maria E. Koehring sold a farm situated in Franklin county which she then owned, to her son and codefendant John H. Koehring, for the sum of $ 2,497.50 payable one third cash, and the balance in one and two years. The cash payment was made, and the notes and deed of trust to secure the deferred payments executed as before stated.
Plaintiffs allege in their petition that, on the fourth day of March, 1892, said Maria "for good and valuable consideration, by indorsement in writing, assigned and transferred and delivered," the first of said notes which became due to said Lisette, and that said defendants combined and confederated together to wrong and defraud said Lisette and for that purpose made and caused to be filed and recorded the said deed of release; that said deed of release impaired said Lisette's security for the payment of said note; that defendants were all insolvent, and that said note was past due.
Defendants in their answer admitted the execution and delivery of the notes and deed of trust to the defendant Maria and the deed of release by her to her codefendants Clara M. and John H. Koehring, but denied all other allegations in the petition. It then alleged that defendants Clara M. and John H. are husband and wife; that defendant Maria is a widow and the mother of the plaintiff Lisette, and of her codefendant John H. Koehring; that at the time of the execution and delivery of said notes and deed of trust, said Maria was boarding with said Lisette and on receipt of said notes and deed of trust placed the same, together with others of her papers in the care and custody of said Lisette for safe keeping; that a few months thereafter said Maria, by reason of unkind treatment received at the hands of her said daughter, left her daughter's house leaving her papers also, which were still in her daughter's control; that a few days thereafter she sent to said Lisette for her papers, when her said daughter sent to her all of them, except the note sued on, which she wrongfully withheld, and still wrongfully withholds.
Plaintiffs made reply to defendants' answer denying all the allegations therein contained.
The trial resulted in a judgment and decree for plaintiffs in accordance with the prayer of the petition canceling the deed of release, and foreclosing the deed of trust. Defendants appealed.
The evidence tended to show that the defendant Maria E. was eighty-three years of age in July, 1893; that she had been a widow for over twenty years at the time of the trial of this cause; that she had six living children, all of whom were married; that prior to and up to October, 1891, she lived with her son John H. on her farm, when she left there and went to her daughter Lisette's house in Washington in Franklin county, and continued to live with her daughter for nearly a year, and then returned to the house of her son, not, however, until after she had sold her farm to him; that in February, 1892, she employed the plaintiff Wehrmann to sell her farm, and that he sold it to the defendant John H. Koehring for the sum heretofore stated, one third being paid in cash, when she executed a deed thereto to Clara M., John H. Koehring's wife, at his request, and he executed his notes, and he and his wife Clara executed a deed of trust on the land to plaintiff Wehrmann as trustee for Maria E. Koehring, to secure the payment of the balance of the purchase money. The notes and deed of trust were executed on the twentieth day of February, 1892, and after they had been delivered to Maria E. Koehring, she handed them to Lisette to put away, and take care of for her.
On the fourth day of March, 1892, Maria E. made a will, which was written by said Wehrmann at her request, and in which is contained the following provision with respect of the note in question, to wit:
Then follows a copy of the note.
She bequeathed to Lisette the other note, to be collected by her and distributed among...
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