White v. Black

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 28,90 S.W. 1153
• Parties: WHITE v. BLACK.
• Court: Missouri Court of Appeals

90 S.W. 1153

115 Mo. App. 28

WHITE v. BLACK.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. TRIAL—INSTRUCTIONS.

In equity cases it is not proper practice for courts to give instructions on the law, and a refusal to give requested instructions is not error.

2. SAME.

In a case at law, it is the duty of the court, at least when requested, to apply the law to the facts by appropriate instructions.

3. MORTGAGES—FORECLOSURE—NATURE OF ACTION.

An action under the statute for foreclosure of a mortgage is one at law and not in equity.

4. PAYMENT—WHAT CONSTITUTES—NECESSITY OF CONSIDERATION.

In order to constitute a payment, the debtor must give something, either in money, property, or right, or must perform some service.

5. SAME—EVIDENCE.

Under a plea of payment, a discharge of the obligation in money or its equivalent may be shown; but it is not permissible to show a gift by the creditor of the amount of the obligation.

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by James P. White, trustee, against M. E. Black. From a judgment in favor of defendant, plaintiff appeals. Reversed.

A. W. Mullins, W. H. Nichols, and H. P. Lander, for appellant. West & Bresnehen and A. A. Bailey, for respondent.

BROADDUS, P. J.

The plaintiff's suit is based upon a promissory note executed by defendant, payable to S. M. White, dated March 1, 1897, and due one year after date, for the sum of $2,900, with 6 per cent. per annum from date, indorsed, "Pay to the order of James P. White, Trustee," by said S. M. White, and, further, to foreclose a certain mortgage executed on the same date by defendant on certain land situate in Linn county, Mo., to secure the payment of said note, wherein one Harry Lander was made trustee. The petition alleges that said S. M. White, on January 16, 1904, the date of transfer of said note, also by writing, constituted plaintiff as her trustee, and conveyed to him as such the said mortgage. The answer admits the execution of said note, and further alleges that, after said note became due and before assignment to plaintiff, the defendant paid said S. M. White the sum of $1,450 on said note and mortgage, for which the said S. M. White executed a receipt to defendant, and released said land from that amount of said incumbrance. Further answering, defendant alleges, that the said S. M. White is the defendant's aunt and plaintiff's mother, that for 30 years next preceding the 18th day of December, 1903, said S. M. White lived with defendant, during which time she furnished her with board, washing, care, and attention; that frequently during all of said time said S. M. White stated to the defendant and agreed to pay her for the said services, and during all said time defendant expected compensation therefor; that, up to said date of December, 1903, the said S. M. White paid her nothing for her said services during said time; and that on said day, she, the said S. M. White, in consideration of the same, executed and delivered to defendant said receipt for $1,450, and released that amount from said mortgage. Defendant brings into court the amount and interest due on said note, less said sum of $1,450, and asks that the note and mortgage be canceled. Plaintiff's reply admits the execution of said receipt by S. M. White, and denies that she ever became indebted to or agreed to pay defendant for board, washing, care, or attention, and further states that at the time S. M. White signed said receipt for $1,450 she was sick and not expected to live but a short time, and that from the effects of said sickness and medicines administered to her she did not know or understand the nature of said writing, and that it was wholly without consideration and void. The cause was tried before the court without a jury. At the written request of the...