Weber v. Orten

• Decision Date: 16 May 1887
• Citation: 4 S.W. 271,91 Mo. 677
• Parties: Weber, Administrator, Plaintiff in Error, v. Orten et al
• Court: Missouri Supreme Court

4 S.W. 271

91 Mo. 677

Weber, Administrator, Plaintiff in Error, v. Orten et al

Supreme Court of Missouri

May 16, 1887

Appeal from St. Francois Circuit Court. -- Hon. J. D. Fox, Judge.

Affirmed.

Smith Silver & Brown, J. F. Bush and K. W. Weber for plaintiff in error.

(1) The promissory note of Samuel C. Orten for twenty-five hundred dollars, containing the "name of the payee," "a promise of payment," and the words "for value received," is negotiable security under our statute. Stillwell v. Craig, 58 Mo. 24. (2) The deposit of the note as collateral security in the hands of plaintiff before maturity, was a negotiation of the note. Logan v. Smith, 62 Mo. 455. (3) And such negotiation before maturity debars the maker, Orten, from showing the matters which his answer pleads in defence. Greer v Yoste, 56 Mo. 307; Bennett v. Torlina, 56 Mo 309; Franklin Sav. Inst. v. Heinsman, 1 Mo.App. 336. (4) The facts warranted the relief plaintiff seeks. Pickens v. Dorris, 19 Mo.App. 1; Pendleton v. Perkins, 49 Mo. 565; Lackland v. Garesche, 56 Mo. 271; Turner v. Adams, 46 Mo. 95; 3 Pomeroy's Eq. 455. (5) McDaniel did not sign the defeasance agreement, and is, therefore, no party to it. State v. Sandusky, 46 Mo. 377; Martin v. Almond, 25 Mo. 313. (6) Besides, the evidence shows that Orten did not use due diligence to sell the patent. Under the general prayer of relief, equity may grant any relief which plaintiff's allegations and proofs warrant. Holland v. Anderson, 38 Mo. 55; Northcraft v. Martin, 28 Mo. 469; Snider v. Coleman, 72 Mo. 568. (7) The mortgage was valid even without a separate note, given when it was executed. 1 Jones on Mortgages [3 Ed.] sec. 353. (8) A plea in abatement is waived by one to the merits. Moody case, 85 Mo. 237. (9) When one has induced another to accept a particular hypothesis, he shall not, afterwards, to the injury of that other, contradict that hypothesis. Taylor v. Langrum, 1 Mo.App. 312; Lindell v. McLaughlin, 30 Mo. 33; Raley v. Williams, 73 Mo. 310; Pickard v. Sears, 6 A. & E. 469. (10) A party cannot even encourage an act to be done, and then exercise a legal right in hostility to such act, to the injury of the party obeying his intimations. Obnen v. Weed, 92 U.S. 84-5. (11) Where a note is given on contingencies not therein expressed, their failure cannot be set up as a defence. Henshaw v. Dutton, 59 Mo. 139. When once delivered, it can only be defeated by some condition contained in the deed itself. Parsons v. Parsons, 45 Mo. 269. A return of the deed to the grantor does not revest title.

D. A. Ball for defendants in error.

(1) Neither the note nor deed of trust given by Orten to McDaniel was ever endorsed by McDaniel to plaintiff; neither was the note alleged to have been copied by defendant from the deed of trust and given to plaintiff, endorsed. This being true, plaintiff took them subject to any and all equities, even though it be a negotiable promissory note. 61 Mo. 439, and authorities cited. (2) The deed of trust was delivered as collateral security for a preexisting debt, therefore, plaintiff took it subject to all equities. 1 Mo.App. 119; 2 Mo.App. 106. The fact that plaintiff held the deed of trust gave him no security unless he also held the note; the note is the debt, and the deed of trust is the security for the debt. (3) The note alleged to have been copied from the deed of trust by Orten, and given to plaintiff, if true, is without any consideration. (4) If the said Felix G. Harrison had an interest in the note and deed of trust, plaintiff's remedy was by attachment and garnishment, and not a suit in equity, and especially is this true since, according to the petition of plaintiff, Lazarus W. Pritchett, co-maker of the note to plaintiff with Harrison, resided in the county at the time suit was instituted. (5) It also appears that at the time of the institution of this suit the defendant had instituted a suit in equity against these same parties to cancel said note and deed of trust. (6) The agreement to surrender the note and deed of trust to Orten by McDaniel cannot be defeated by this proceeding, because the note was not delivered to plaintiff, and if it had been said Harrison had no interest in the same and no right or authority to give the same as collateral security. Harrison held the deed of trust in error. 67 Mo. 667; 49 Mo. 87; 59 Mo. 139. The question as to whether or not Harrison had an interest in the note and deed of trust was a question of proof, and the court decided the same for defendant and this court will not review the evidence.

OPINION

Sherwood, J.

This proceeding in the court below was one of equitable garn ishment, whereby the original plaintiff, John A. Weber, now deceased, sought to subject a certain promissory note and deed of trust to the payment of certain indebtedness due by one of the defendants, Felix G. Harrison, to the original plaintiff, on the ground that Harrison owned one moiety of the promissory note, although the same was made payable to W. H. McDaniel or order. Harrison had become non-resident prior to the institution of this suit. The answer of Orten, the maker of the note and deed of trust, pleaded failure of consideration, fraud in obtaining the note and deed of trust, and an agreement in writing in the nature of a defeasance, though not recorded, for their surrender upon the happening of certain contingencies. The deed of trust was given to secure the payment of a debt contracted for a...