Mullanphy v. Riley

• Decision Date: 31 March 1847
• Citation: 10 Mo. 489
• Parties: MULLANPHY v. RILEY.
• Court: Missouri Supreme Court

10 Mo. 489

MULLANPHY

v.RILEY.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

LEONARD & BAY, for Plaintiff. 1. A note given by way of settlement, and to avoid the trouble, expense and risk of litigation, where the law is doubtful, and there is a difference of opinion, will not be held invalid for want of consideration. Longbridge v. Dorrille, 5 Barn. & Ald. 117; 1 Leigh's N. P. 30; Brown v. Sloan, 6 Watts, 421. 2. Damage, trouble, inconvenience or prejudice to the promisee, constitutes a good consideration, as benefit to the promisor. 2 Peters, 182; 5 Cranch, 142; 8 Mass. 200; 6 Mass. 58; 4 Munf. 63; Johns. Ca. 52; 1 Conn. 519; Chitty on Contracts, 25; Marks v. Bank of Mo., 8 Mo. R. 316. Waiver of a legal right, at the request of another person, is a good consideration for a promise by him. 2 N. Hamp. 97; 4 Pick. 97; 14 Johns. 466. 3. The facts presented in this case do not materially differ from those presented when the case was before this court at the July term, 1844 (see same case, 8 Mo. R. 675), at which time the foregoing points were recognized as correct and applicable to the facts. Since that decision, this court has decided that the lien of a judgment is not lost by the death of the judgment debtor. Prewitt v. Jewell, 9 Mo. R. 732. The instructions given on the part of defendant were clearly erroneous; 1. Because the court instructed the jury that the lien of Mullanphy's judgment against Riley was extinguished by the death of the latter, thus making the case turn upon a point entirely immaterial. 2. Because the jury were instructed to find for defendant if they should believe from the evidence that the mortgage was executed by defendant to extinguish such supposed lien, she relying upon the opinion of the plaintiff that such lien existed. Whether the lien existed or not, was immaterial. The only questions that could arise upon this point, were, 1st, whether Mullanphy's opinion or representation was made in good faith; and 2nd, whether the question of the lien was one about which a reasonable doubt might be entertained.

GAMBLE & BATES, for Defendant. As to both the plaintiff's instructions, there is no foundation for either of them in the facts of the case, as stated in the bill of exceptions. They are inapplicable to the case, and could but tend to mislead the jury.

McBRIDE, J.

This was a petition to foreclose a mortgage, brought by Mullanphy against Riley in the St. Louis Court of Common Pleas. The defendant pleaded l debet, and gave notice (under the statute) that upon the trial she would show a want of consideration for the making of the note and mortgage; and that the said note and mortgage were executed under an erroneous belief of indebtedness superinduced by the representations of the mortgagee, &c. On the trial, judgment was given for the defendant, when the plaintiff moved for a new trial, which being refused, he excepted, and has sued out a writ of error.

To sustain the pleas, the defendant called upon the plaintiff to testify, who stated that he had obtained a judgment against John P. Riley, in his life-time, for about the amount of the note mentioned in the mortgage, and the said Riley died, leaving the said judgment unsatisfied; that the defendant in this case, the widow of said decedent, and Joseph Walsh, frequently said the judgment should be paid; and finally the defendant, in order to lift the cloud or incumbrance of the judgment from the estate of her deceased husband, and in lien of said judgment and the lien which it was supposed to create upon the real estate of the deceased, gave plaintiff this note and mortgage. It was supposed by the witness that the lien of the judgment extended over some real estate of the deceased, and was not extinguished by his death. He did not tell them so, but spoke of it to Joseph Walsh, or perhaps to both of them, as a disputed point; gave it as his own opinion that it was so. Walsh replied, by giving Mr. Gamble's opinion that it was not so; and said that he believed that there was no lien or occasion to pay; that Mr. Gamble had told them so, but that the debt ought to be paid, and they would pay it. The witness thought they were not willing to the lien. Joseph Walsh was the person with whom the conversations were chiefly held, and finally, witness urging a settlement, and saying that the widow might take her own time; the note and mortgage were brought to him by Walsh. When the note, which was payable in two years, became due, suit was brought. Mrs. Riley sent for the plaintiff, and asked his advice, and wished to let judgment go to save costs; but he advised her not to do so, saying the land would sell low, and advised her to employ counsel and make the best defense she could, and to gain time, when the property would probably sell better. The witness further testified, that he had never presented his judgment for allowance in the Probate Court, against the estate of John P. Riley, but suffered the three years time allowed by law for the settlement of the estates of deceased persons to elapse, relying solely on said note and mortgage for his debt.

Mrs. Primm, also a witness for defendant, testified that she was the daughter of the defendant, Mrs. Riley, and was present at a conversation between the plaintiff and defendant, at the house of the latter, in the spring of the year 1841; thought it was the day before the execution of the note and mortgage in controversy. Mr. Mullanphy came in, and asked the defendant whether she had signed the papers; defendant said she had not; plaintiff then said that the papers were a note for the debt and a mortgage on four of the lots (meaning lots in Riley's addition to St. Louis), which the defendant bought under a deed of trust executed subsequently to the plaintiff's judgment, by said Riley to Gamble; that the defendant might take her own time, and if she executed the note and mortgage, it would release her property from the judgment, which the said plaintiff held against her deceased husband; and if she did not execute the papers, the judgment would bind all her property. That the defendant said she would consult Mr. Walsh, now deceased, and if he advised her to do so, she would execute the note and mortgage; that she understood that plaintiff had called on the defendant several times before touching the claim, and that the matter had been talked of at different times within three weeks before the execution of the mortgage, but she, witness, was not present at any of said conversations, except the one touching which she has testified as above. That Mr. Walsh was public administrator, and, as such, took upon himself the administration of the estate of John P. Riley. The witness further stated, on cross-examination, that Riley's addition, above alluded to, was made by her deceased father, John P. Riley, before his death, and that at the time of his death, he owned real estate; that the whole seventeen lots purchased by her mother, the defendant, were purchased at a sale made by Mr. Gamble, under a deed of trust given by her father before his death, but after the plaintiff had obtained his judgment; and that it was claimed by plaintiff that the lien of his judgment extended to the whole of these lots. The witness being asked to state the language, as nearly as she could remember it, used by the plaintiff, in relation to the property and the judgment, said, that plaintiff said that the judgment bound all of her property, and that if Mrs. Riley would execute the note and mortgage, it would release the property; and if she did not, all the property would be bound.

This being all the evidence given in the case by the...