Strine v. Williams
| Decision Date | 12 February 1901 |
| Citation | 60 S.W. 1060,159 Mo. 582 |
| Parties | STRINE v. WILLIAMS et al., Appellants |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Circuit court judgment affirmed.
Callison & Hutchison and J. T. DeVorss for appellants.
(1) Under the pleadings, the court erred in admitting the evidence offered by the plaintiff for the purpose of proving payment of the $ 85 note by the execution of the $ 101 note. Rider v. Culp, 68 Mo.App. 530; State ex rel. v Deggs, 106 Mo. 160. (2) Even if the testimony was competent and admissible, the court erred in finding that the making of the $ 101 note was payment of the $ 85 note, in the total absence of proof that there was an agreement or understanding between the parties that the former note was made and delivered and accepted in payment of the latter, and the absence of testimony clearly showing that it was the intention of the parties that payment was being thus made, or the $ 101 note was ever delivered to Williams or the $ 85 note was ever surrendered to Langford. State ex rel. v Wagers, 47 Mo.App. 438; Bank v. Carson, 32 Mo. 196; Howard v. Jones, 33 Mo. 587; Thompson v. Kellogg, 23 Mo. 285; Montgomery County v. Auchley, 103 Mo. 502; Land Co. v. Rhodes, 540 Mo.App. 129; Shotwell v. Monroe, 42 Mo.App. 677; Hall v. Robinson, 50 Mo.App. 183.
Wm. D. Hamilton and Boyd Dudley for respondent.
(1) The owner of land may restrain a threatened sale of land under a deed of trust which is claimed to be in force, but which in point of fact has been satisfied, the payment of the note extinguishing a deed of trust given to secure it. Murphy v. Simpson, 42 Mo.App. 654; Brooks v. Owens, 112 Mo. 251; Ryan v. Gilliam, 75 Mo. 132; Parks v. Bank, 97 Mo. 130. (2) Anything is a payment which the creditor accepts as payment or for the purpose of extinguishing a debt due him. 18 Am. and Eng. Ency. of Law, 158; Block, Admr., v. Dorman, 51 Mo. 31. (3) The evidence shows that the $ 101 note was not only taken in payment and satisfaction of the $ 85 note, but that the $ 101 note was paid off, and as the case was tried without the intervention of a jury, every presumption will be made by this court in favor of the action of the trial court. Stone v. Pennock, 31 Mo.App. 544; Baum v. Fryrear, 85 Mo. 151. (4) The evidence shows that the $ 101 note was executed for the $ 85 note and was lost or taken by mistake, and before the defendant will be allowed to recover upon the original note he must account for the substituted note. Jackson v. Bowles, 67 Mo. 616.
MARSHALL, J. Valliant, J., holds that this court has no jurisdiction in this case.
This is a proceeding in equity to enjoin the foreclosure of a deed of trust on certain land in Daviess county, on the ground that the debt secured thereby has been paid. The circuit court perpetually enjoined the foreclosure, and the defendants appealed to the Kansas City Court of Appeals and that court transferred the case to this court on the ground that it involved title to real estate.
In March, 1894, Clay C. Langford owned the land, and he executed the deed of trust to William C. Gillihan, trustee, to secure a note for $ 640 to Turner Langford, another note for $ 432.61 to Turner Langford, a note for $ 210 to Owen C. Edwards, and a note for $ 85 to Robert C. Williams, the last named note being dated February 20, 1892, and payable at one year, with eight per cent interest from date.
On January 29, 1896, Clay C. Langford, conveyed the land to the plaintiff, by a warranty deed.
Thereafter on the fourteenth of March, 1896, T. B. Yates, having become the owner of all the notes except that for $ 85 to Williams, and Langford having paid Yates all of the notes held by him, Yates released the deed of trust and satisfied it on the margin of the records. The plaintiff claims that the Williams note was also paid.
Williams requested the trustee to foreclose the deed of trust to satisfy his $ 85 note, the trustee refused, and Williams procured the sheriff of the county, as the deed provided might be done in case the trustee refused to act, to act as trustee and advertise the land for sale. Thereupon this suit was instituted with the result in the trial court above stated.
The sole question in the case tried in the circuit court and raised in this court is whether the Williams note is paid, both parties conceding, as is the law, that if it was paid the deed of trust is functus officio, and hence can not legally be foreclosed.
The evidence adduced by the plaintiff showed that after this Williams note fell due, Langford and Williams had a settlement, and Williams figured out how they stood. Williams also held another note of Langford's for twenty odd dollars. Langford had furnished Williams two loads of hay and a dressed hog. Williams added the $ 85 note and the $ 20 note together, calculated the interest on them, gave Langford credit for the value of the hay and hog and it appeared that Langford owed him a balance of $ 101, and thereupon Williams made out a new note for that amount, and Langford executed it. Up to this point there is no conflict in the evidence. Langford took the $ 20 note and says he overlooked the $ 85 note which has remained in defendant's possession ever since. Langford says he never saw the $ 101 note until some time afterwards, and then when he sold his hogs he paid it and it was lost or destroyed. Williams says he never paid it all; that after Langford left he could not find the $ 101 note, and so he sent word to Langford, by his father, that he had taken the wrong note -- meaning he had taken the $ 101 note instead of the $ 85 note -- and he wanted him to come in and fix it up. Langford came in and denied that he had taken the $ 101 note, and Williams said he had not meant to charge him with having done so intentionally, and on the trial he would not say that Langford had taken it, but only that he could not find it, and therefore he thought Langford might have taken it by mistake. Langford says that the $ 101 note was agreed to be in payment and satisfaction of the $ 85 note and the $ 20, with interest, less the value of the hay and hog. Williams admits the transaction, but denies that it was to be in payment of those notes, and says that it was intended only as an extension of those notes. Whichever is the correct statement, it is ...
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