Shaw v. Burton

• Decision Date: 31 August 1838
• Citation: 5 Mo. 478
• Parties: SHAW v. BURTON.
• Court: Missouri Supreme Court

5 Mo. 478

SHAW

v.BURTON.

Supreme Court of Missouri.

August Term, 1838.

S. T. GLOVER, for Plaintiff, cited: 3 East's R. 257-8-9; 2 Tuc. Com. 137-8; 7 Cranch, 303-4; 3 Coke's R. 45-6; 1 Burr R. 9; 1 Mo. R. 617; 5 Bac. Abr. title Obligation, a, 155.

S. W. B. CARNEGY, for Defendant, cited: 3 East, 278-9; 3 Blacks. Com. 16; 2 Johns. R. 342; 2 Star. 25; 5 East, 294; 2 Tuc. 27-8; 2 Johns. Dig. 4; 1 Saund. Pl. 26; 1 Chit. 93; 6 T. R. 176-7.

EDWARDS, J.

Burton sued Shaw by petition in debt on a promissory note. Shaw appeared and filed two pleas, the first in substance as follows: That after the day of the date of the said writing of the defendant in plaintiff's petition mentioned, to-wit: on the nineteenth day of September, A. D. 1837, at the county of Marion, and State of Missouri, the said defendant did, at the special instance and request of the plaintiff, make and execute to the plaintiff his certain deed in writing, to-wit, on the day and year last aforesaid, signed with the hand and sealed with the seal of said defendant, which said deed the said defendant cannot bring with him into court that the court may see it, because the same was, on the day of its execution aforesaid, delivered to the plaintiff, and is now in the possession of the plaintiff; by which said deed, after reciting the very same identical writing in the plaintiff's petition mentioned, and the defendant's anxiety to secure to the plaintiff the payment of the said identical debt in the plaintiff's petition mentioned, the defendant bargained, sold and conveyed to the plaintiff and to his heirs forever, three certain horses, two yoke of oxen, and two cows, therein particularly described; but the said sale and conveyance to be subject to the following condition: the said defendant bound and obliged himself to pay to the plaintiff the said identical sum of two hundred and thirty-one dellars, with ten per cent. per annum interest thereon, from the 26th day of May, A. D. 1837 (being the same identical debt in the plaintiff's petition mentioned), on or before the 25th day of December, 1837; and it was further provided in the said deed, that if the said defendant should well and truly pay off the said debt, on or before the day and year last aforesaid, that then and in that case the said deed of conveyance and all things therein contained should be null and void, otherwise they should remain in full force and virtue; and the defendant doth aver that neither the said sum of money aforementioned, or any part thereof, was paid to the plaintiff on or before the 25th day of December, A. D. 1837, and this he, the said defendant, is ready to verify. The second plea pleaded by said defendant, is like the first, except that it “avers that the plaintiff accepted and and received the said deed in discharge and satisfaciton of the said writing in plaintiff's petition...