Murray v. Oliver
| Decision Date | 31 July 1853 |
| Citation | 18 Mo. 405 |
| Parties | MURRAY, Respondent, v. OLIVER, Appellant. |
| Court | Missouri Supreme Court |
1. The admissions of the obligee of a bond, while he was the owner of it, that it was given for an illegal consideration, are competent evidence against his assignee.
2. If evidence of such admissions is excluded, the error is not cured by the fact that the obligee is afterwards sworn as a witness, at the instance of the party offering them.
Appeal from Callaway Circuit Court.
Murray sued Oliver by attachment, on a bond for two hundred and fifty dollars, executed by T. P. Allen, Francis S. Smith and the defendant, and also on a note for eighteen dollars and sixty-three cents, made by the defendant. The defendant in his answer, admitted the execution of the note and alleged a tender, but set up as a defense to the bond, that it was given to secure a sum of money won by James D. McGary, the obligee therein, of Thomas P. Allen, on a wager as to the result of the presidential election in 1840. On the trial, the defendant offered to prove, by several witnesses, admissions by McGary, while he was the owner of the bond, and before he assigned it to the plaintiff, of the facts constituting the defense. McGary was present in court at the time. The court excluded this evidence as incompetent. Afterwards, at the instance of the defendant, McGary was sworn as a witness, and stated that the bond was not given for the consideration named in the answer. There was a verdict and judgment for the plaintiff and the defendant appealed to this court.
Ansell, for appellant.
Hardin, for respondent.
1. The only question we are called upon to decide in the present case is, whether the admissions of McGary, in relation to the consideration of the bond declared upon, made while he was the owner of the bond, were admissible in evidence against the plaintiff, his assignee, when McGary himself was alive and present in court, and competent to testify.
The assignee of a bond obtains “no greater title to or interest in the bond than the person had from whom he acquired it.” “The nature of the defense of the obligor is not changed by the assignment, but he may make the same defense against the bond or note in the hands of the assignee that he might have made against the assignor.” (R. C. 191.)
The admissions of the obligee in a bond, made while he was the owner of the instrument, are, beyond all question, competent evidence against his...
To continue reading
Request your trial
-
Johnson v. Burks
... ... Ency. Law (2 Ed.), 8; 1 Greenleaf on Ev. (15 Ed.), sec ... 147, et seq.; Wynn v. Cory, 48 Mo. 446; ... Dickinson v. Chrisman, 28 Mo. 134; Murray v ... Oliver, 18 Mo. 405; McLaughlin v. McLaughlin, ... 16 Mo. 242; Nichols v. Ellis, 98 Mo. 344; ... Hinters v. Hinters, 114 Mo. 31; Klopper v ... ...
-
First Nat. Bank of Silverton, Tex. v. National Live Stock Commission Co.
...which would have been good against himself, it may be used against a person claiming under him. Turner v. Belden, 9 Mo. 797; Murray v. Oliver, 18 Mo. 405; Cavin v. Smith, 21 Mo. 444; Cavin v. Smith, 24 Mo. 221; Wood v. Hicks, 36 Mo. 326; Kingsland v. Drum, 80 Mo. However, it is argued by de......
-
Peers v. Davis' Adm'rs
...at or before the sale. (7 Mo. 514.) Statements made after the assignment of the note by Sebastian were not competent evidence. (6 Mo. 48; 18 Mo. 405; 27 Mo. 440.) EWING, Judge, delivered the opinion of the court. The exceptions to the ruling of the court below, insisted on here, are in excl......
-
Charleson v. Hunt
...refresh his memory. A. J. P. Garesché, for appellants. I. The deposition was improperly excluded. (Kritzer v. Smith, 21 Mo. 296; Murray v. Oliver, 18 Mo. 405.) Polk and Henry N. Hart, for respondent. I. The deposition was properly excluded. Hunt was in court ready to testify. (See R. C. 18......