Miller v. Wilson

• Decision Date: 26 November 1894
• Citation: 28 S.W. 640,126 Mo. 48
• Parties: MILLER et al. v. WILSON.
• Court: Missouri Supreme Court

28 S.W. 640

126 Mo. 48

MILLER et al. v. WILSON.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

PAYMENTS TO AGENT — COMPETENCY OF WITNESS.

1. Defendant's intestate sold certain property to T., taking back a trust deed, and T. sold it to plaintiffs, who gave him a trust deed to secure the price due him. H. was intestate's agent for collecting rents, and through him both of said sales were made. He was also trustee in the deed from T. to intestate, and, after the sale by T. to plaintiffs, was instructed by him to collect plaintiffs' notes, and apply them on T.'s notes to intestate. Intestate was told of such arrangement, and consented to it. Held, that payments made to H. thereon were payments to intestate, and applied on T.'s notes to him.

2. Under Rev. St. 1889, § 8918, providing that, where an administrator is a party to an action, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living, and competent to testify, the plaintiff in an action to concel a trust deed may testify as to transactions, regarding said deed, had with the agent of defendant's intestate.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Suit by Maria E. Miller and another against John Wilson, administrator of the estate of Samuel Cochran, deceased, for the cancellation of a trust deed. Judgment for plaintiffs, and defendant appeals. Affirmed.

Karnes, Holmes & Krauthoff, for appellant. J. W. Jenkins, for respondents.

MACFARLANE, J.

The suit is in equity to cancel and declare satisfied a certain deed of trust, which will be more particularly described. On the 1st day of September, 1886, one Samuel Cochran sold and conveyed to L. W. Towne lots 119, 120, 121, and 122 in Garfield Park, in Kansas City. To secure two notes, each for $387, a part of the purchase price, the said Towne executed and delivered to the said Cochran a deed of trust on said lots, which was duly recorded. On the 19th of October, 1886, Towne sold, and by deed of general warranty conveyed, said lots 120; 121, and 122 to plaintiff Maria E. Miller, and took back from her a deed of trust to secure two notes for $400 each, a part of the purchase price. On the same day the said Towne sold, and by general warranty deed conveyed, lot 119 to the two plaintiffs, jointly, and took back a deed of trust from them on the same lot to secure two notes for $125 each, a part of the purchase price of the lot. Neither of these plaintiffs at the time had actual knowledge of the prior deed of trust on the same lots given by Towne to Cochran. Both these sales were made by one W. T. Hall, as agent for the vendors. The notes given by plaintiffs were placed by Towne in the hands of the said Hall, as agent, with authority to collect them when due, and instructions to apply the collections made in payment of his notes to Cochran, and in satisfaction of the prior deed of trust. Plaintiffs afterwards learned of the prior deed of trust, but were at the same time advised of the instructions given to Hall, and were satisfied. Plaintiffs paid to Hall, under this arrangement, at different times, sums aggregating $869. With the money so collected, Hall paid one of the notes due Cochran, but neglected to pay the other. Cochran died in November, 1889, and defendant, Wilson, is his administrator. Subsequent to the death of Cochran, plaintiffs paid Hall $50, which amount was paid over to defendant, and credited on the remaining $387 note. This is the only credit on said note, and defendant, as administrator of Cochran, holds the note, and claims the security of the prior deed of trust. The truth of these facts is not contested. Plaintiffs claim that the note is paid in full, and that they are entitled to have the deed of trust satisfied, for the reason, as they charge in their petition: "That said Hall was the duly-authorized agent of said Cochran to collect the purchase price of said lots from said Towne, and of the said Towne to collect the said notes due from the plaintiffs. That at the time of the said sale to these plaintiffs the said Hall, as these plaintiffs have since learned, made an arrangement with said Towne to collect the money as it became due from the plaintiffs, for the said Cochran, and that said money, when so collected, should be payments on the said Towne notes. That said Cochran was fully informed of said arrangements, and sanctioned and ratified the same; and the payments subsequently made by these plaintiffs to the said Hall were so applied to the payment of the first of said Towne notes, and the same was surrendered to said Towne by said Hall, as these plaintiffs have been since informed." Defendant, by answer, admitted that he was administrator of Cochran, as charged, but denied all other allegations of the petition. The court found the issues for plaintiffs, and entered a decree satisfying the deed of trust, and defendant appealed.

It will be readily seen that the only issue of fact to be determined is whether Cochran was a party to, or acquiesced in, the arrangement between Towne and his agent, Hall, that the money collected from plaintiffs by Hall should be credited upon the notes from Towne to Cochran. Defendant insists that there was no sufficient evidence to establish that fact. It is undoubtedly true as contended by counsel, that no agreement made between the plaintiffs, Towne, and Hall would be binding on Cochran, unless he affirmatively agreed that Hall should receive the payments from plaintiffs, for him, as payment on the notes he held against Towne. The other parties had no power, without his consent, to substitute one debtor for another. Mere knowledge of the arrangement, and receipt of the money when collected, and a credit thereof on the Towne note, would not, alone, bind him to the arrangement, or estop him to deny it. It was a matter of indifference to him how Towne raised the money with which to discharge the deed of trust. He had the right to retain his security until his debt was paid. If, on the...