Richardson v. Lowry

• Decision Date: 30 April 1878
• Parties: RICHARDSON et al., v. LOWRY, Appellant.
• Court: Missouri Supreme Court

67 Mo. 411

RICHARDSON et al.,

v.LOWRY, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Vernon Circuit Court.--HON. JOHN D. PARKINSON, Judge.

Scott & Stone for appellants.

1. Under the pleadings, the ownership of the note is conceded to be in the husband, that being alleged in that part of the answer not stricken out, and not controverted by reply or otherwise. Bartholow v. Campbell, 56 Mo. 117.2. The debt evidenced by the lost note, being a just demand against plaintiff, J. H. Richardson, created before the execution of the note sued on, and having been assigned in good faith, for value, to defendant long before the commencement of this action, should, under the facts alleged in the amended answer, have been allowed as a counter claim. Burgess v. Cave, 52 Mo. 43; Waddingham v. Loker, 44 Mo. 134; Dold v. Geiger, 2 Gratt. 98; Reeve's Domestic Relations, 3d ed. p. 63; Pawley v. Vogel, 42 Mo. 291; Hockaday v. Sallee, 26 Mo. 219. 3. The act of March 25th 1875, is not applicable to the case. Cunningham v. Gray, 20 Mo. 171; Tally v. Thompson, Ib. 277.G. S. Hoss for respondent.

A chose in action does not vest absolutely in the husband, and does not become his until reduced to possession. 2 Kent's Com., (10 Ed.) p. 122. There was no evidence of such reduction up to March, 1875, when, by operation of law, it became the separate property of the wife. Sess. Acts of 1875, p. 61. The mere fact that her husband owed a small amount of money is no evidence of fraud; his act ought, at least, to have the effect of delaying his creditors before the law will presume fraud. Potter v. McDonald, 31 Mo. 62; Pawley v. Vogel, 42 Mo. 291; Waddingham v. Loker, 44 Mo. 132; Reppy v. Reppy, 46 Mo. 571.

NAPTON, J.

This action was upon a note made November 17th, 1874, by the defendant to Mrs. Richardson, for $225, payable in two years after date. The suit was commenced in April, 1877. The note was credited with $25, paid November 25th, 1876. The answer admits the execution of the note, and that payment was made on it of the $25, but sets up the following defense: “Further answering, defendant says that the plaintiffs ought not to have and maintain their said supposed cause of action in the form alleged against defendant, for defendant says that plaintiff, J. H. Richardson, on the 31st day of October, 1876, became and was, and is now indebted to the defendant in the sum of $148.20, on a debt theretofore owing by said plaintiff, J. H. Richardson, to one Nancy E. Madding, widow and executrix of William Madding, deceased, on account of a note executed in October, 1872, to one John Madding, (as agent of William Madding, deceased,) in lieu of and for moneys theretofore collected by said J. H. Richardson for said William Madding, and appropriated by said Richardson to his own use, and which note so executed by said Richardson was the property of said William Madding, now deceased, and by him lost or destroyed prior to October 31st, 1876, and which debt evidenced by said lost note (an account of which, and assignment of said lost note is herewith filed) defendant on the 31st day of October, 1876, purchased from said Nancy E. Madding, and she for value received assigned to the defendant, being authorized to do the same; and that on the 20th day of January, 1877, defendant offered with plaintiffs to set off said sum of $148.20 against an equal amount on the note sued on, and to pay the balance of said note in lawful money, and did then tender plaintiffs, as such balance, the sum of forty-five dollars, and he here now again offers, and is willing to allow and set off the said sum of $148.20 as aforesaid, and here again brings into court and tenders to the plaintiffs the said balance of forty-five dollars.

Defendant says that the consideration for the note sued on was wholly and separately furnished by said J. H. Richardson, being for property belonging to said J. H. Richardson, and from him purchased by defendant, and that said note was at the request and instance of said J. H. Richardson, drawn in favor of his said wife; but defendant says that said note belongs to and is the...