Renshaw v. Wills

• Decision Date: 31 March 1866
• Citation: 38 Mo. 201
• Parties: WILLIAM RENSHAW, JR., Respondent, v. MARTHA A. WILLS, Appellant.
• Court: Missouri Supreme Court

38 Mo. 201

WILLIAM RENSHAW, JR., Respondent,

v.MARTHA A. WILLS, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

Sharp & Broadhead, for appellant.

I. That the sheriff is trustee of this fund; that he held the note taken for the purchase money of the land, subject to the order of the court; that having been ordered to take a note for the deferred payment, he has no other authority than to collect the money and pay it over, under the order of the court; he could not sell the note.

II. That if the plaintiff discounted the note with a knowledge of the fact that the sheriff held it in the capacity of trustee, he becomes a party to the illegal act of the sheriff, and acquires not title to the note.

First--The sheriff was not the owner of the note; he was acting in a public capacity, selling the land belonging to other parties--R. C. 1855, p. 1116, § 35. By this section of the partition law, the sheriff is required to take notes or bonds for the purchase money, collect and pay over the same according to the order of the court, &c. And by sec. 37, if the sale is made and the business not completed, he may collect and pay over the money, and make the deed in the same manner as if he continued to be sheriff, unless the court shall, by order, direct the business to be transferred to the next sheriff; showing that the court has control of the whole matter in the hands of the sheriff--Ranney v. Brooks, 20 Mo. 106.

Second--The plaintiff saw that the note was given to Castello as sheriff, and that he endorsed it as sheriff, and also in his individual capacity as James Castello. This was conclusive evidence that the note was given to and held by Castello as sheriff. The sheriff, as such, has no authority to sell a note; this the purchaser must have known.

If the transferee of a bill knows that the transferer has no right to pass the bill, he can acquire no property in it. If plaintiff endorsed bills to A. B. or order, for account of plaintiff, and A. B. pledged the bills with defendant for his private debt; held. that defendant took them with notice that they did not belong to A. B.--Byl. Bills, 122; 9 Paige, 57-60. This principle seems to be well settled. But the plaintiff relies doubtless upon the decision of this court in the case of Powell v. Morrison, 35 Mo. 244.

It is proved plainly that Castello was an officer of the law, and that the note was given to him as such.

The suit of Powell v. Morrison was a suit to recover back money already paid, this is a defence made by one of the distributees against a suit brought for the recovery of money, a part of which, at least, and perhaps the whole, belongs to her.

This may be a hard case on the plaintiff, who has paid his money for the note; but it would be equally hard on the defendant should she lose it, when she has been guilty of no negligence. In the case of Hertell v. Bogert, 9 Paige, 60, the court, in a similar case, says, that “where one of two innocent parties must suffer by the wrongful act of a third party, the one who, by his negligence, has enabled such third party to do the injury, must himself bear the loss occasioned thereby.” Here, as in that case, the plaintiff must have known that the sheriff had no power to sell; he enabled the sheriff to commit a breach of trust and a violation of the law, and he must suffer the consequences of his own negligence.

Krum, Decker & Krum, for respondent.

I. The court below properly refused the instruction asked by the defendant.

a. The sheriff was the legal holder of the note in question, and had an indisputable right to transfer or assign it by endorsement and delivery. The word “sheriff,” on the face and back of the note, was merely descriptio personœ. It did not limit the property of the sheriff, and conveyed no notice to the plaintiff of equities in favor of third persons--Freeman et al. v. Camden et al., 7 Mo. 298; Bryant v. Durkee, 9 Mo. 169; Jeffries v. McLean's Exec'r, 12 Mo. 538; Thornton v. Rankin, 19 Mo. 193; Trumbull v. Freret, 5 Martin, La., N. S., 703; Powell v. Morrison et al., 35 Mo. 244.

b. There was no notice of equities attached to the note brought home to the plaintiff, so as to have put him upon inquiry. He obtained the note through a broker, in the usual course of business. The deed of trust was not transferred to him until after he had purchased the note. The purchase was in good faith and for value--Goodman v. Simonds, 20 How 343, 367-8.

c. Even if the plaintiff knew that the note in question was given in part payment for land sold in partition in which defendant was interested, this fact alone cannot prevent his recovery. He did not know to what use the proceeds of the note would be appropriated by Castello. Hin knowledge of Castello's position as trustee did not of itself amount to notice of equities attached to the note. He could only be affected by equities attached to the instrument of which he had notice at the time of the assignment--Gullett v. Hay et al., 15 Mo. 399; Powell v. Morrison et al., 35 Mo. 244.WAGNER, Judge, delivered the opinion of the court.

Plaintiff instituted suit against defendant on a negotiable promissory note made by defendant, payable to the order of James Castello, sheriff, for the sum of eighteen hundred and fifty-six dollars and twentyfive cents, due two years after date, and endorsed by Castello before maturity to plaintiff.

The defendant in her answer alleged, that, in a certain proceeding in partition, wherein she was one of the parties, by the decree of the court, the said James Casetllo, then sheriff of St. Louis county, was ordered, adjudged and required to sell the real estate in the partition suit mentioned and described, according to law, and upon the following terms, to-wit: one-third of the purchase money to be paid in cash, one-third in one year, and one-third in two years from the date of said sale; the deferred payments to bear interest at the rate of six per cent. per annum, and to be secured by notes and deed of trust on the property. That, in pursuance of said order of sale, the said Castello, as sheriff, proceeded to sell the property on the terms required by the order, and took notes from the purchasers secured by deeds of trust on the property for the deferred payments. That a part of the real estate so sold was purchased by the defendant, and for the deferred payments she executed her notes to the said James Castello as sheriff, and gave her deed of trust on the property to secure the payment of the same; that the note for the last payment is the same note sued on in this case; and that when Castello assigned and delivered the note to the plaintiff, he delivered also the trust deed; and that when said note and deed of trust were so assigned and delivered to plaintiff, the plaintiff had full knowledge of the fact that the note was given to Castello as sheriff, and that the said note was given for the purchase money, in part, of the tract of land sold in partition under the order of court. Defendant further averred, that Castello had never accounted as sheriff for the proceeds of the note, if any, he received from the plaintiff; that his term of office had expired, and that he was insolvent; that the plaintiff obtained the note in fraud of the rights of the distributees in the partition suit, of whom defendant was one, and, by collusion with Castello, with intent to defraud the distributees out of their rights to the said purchase money. The answer then asked that the other distributees might be made parties, so that there could be a full and final adjustment of all the matters in controversy.

It appears from the evidence that Castello, while still sheriff of...