Wilson v. Salisbury
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 194,167 Mo.App. 191 |
| Parties | MARTHA WILSON, Respondent, v. A. J. SALISBURY, and E. H. SALISBURY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
John W Brigham and Smoot & Cooley for appellants.
(1) Plaintiff was an indorser on the note and only secondarily liable, and was therefore released by the unauthorized extension of time, it being made without her knowledge and for a valuable consideration. Sec. 10090 and 10161, R. S 1909; Jamison v. Copher, 35 Mo. 483; Nelson v Brown, 140 Mo. 580. Therefore, whether the payment was made by Martha Wilson the plaintiff or her husband G. W Smith, the payment was voluntary. She cannot attack the conveyance. Lakenan v. Roberts, 9 Mo.App. 179. It is held that even though the indorser consents to the discharge of a maker it releases the indorser. Eggman v. Henson, 56 Mo. 123; Brown v. Croy, 74 Mo.App. 462. A security once dead cannot be revived for any purpose. Bank v. Freund, 80 Mo.App. 657. (2) The conveyance from A. J. to E. H. Salisbury was not voluntary; there was a valid and substantial consideration paid and in order to defeat the conveyance an actual intent to defraud must be shown. No such intent was shown, and the court did not so find. The evidence shows there was no such intent. Bank v. Vollrath, 135 Mo.App. 63.
D. M. Wilson and J. W. Clapp for respondent.
(1) The conveyance of A. J. Salisbury to E. H. Salisbury was invalid as to existing creditors, regardless of the intent with which it was made. Dunlap v. Mitchell, 80 Mo.App. 393; Bank v. Vollrath, 135 Mo.App. 63; Bank v. Winn, 132 Mo. 80; Childers v. Pickenpaugh, 219 Mo. 376. (2) The deposition of A. J. Salisbury, a party to the suit, was admissible, although he was present at the trial. Bank v. Nichols, 202 Mo. 323. (3) Issue of execution and return of nulla bona may be dispensed with when it is shown that the debtor is insolvent. Merry v. Freeman, 44 Mo. 518; Turner v. Adams, 46 Mo. 95; Iron Co. v. McDonald, 61 Mo.App. 569. (4) A judgment cannot be attacked for an omitted defense. It is conclusive, and where it is on a note it fixes the relation of debtor and creditor as beginning at the time the note was given. Smoot v. Judd, 184 Mo. 541; Walther v. Null, 233 Mo. 104; Childers v. Pickenpaugh, 219 Mo. 376.
--This is a suit to charge certain real estate with a lien to enforce a judgment.
On October 23, 1907, Jacob Salisbury, as principal, with the defendants, A. J. and E. H. Salisbury as sureties, executed their promissory note for $ 104.50, payable to plaintiff, Martha Wilson, due in one year after date. Jacob and E. H. were the sons of A. J. Salisbury. Soon thereafter and before due, the plaintiff transferred the note to the Farmers' Bank at Pollock. Before the maturity of the note the defendant, A. J. Salisbury, sold and conveyed the land sought to be charged to his son, the defendant, E. H. Salisbury. The consideration agreed to be paid was the assumption by the grantee of mortgage indebtedness on the land to about $ 3000, and the payment of unsecured debts of A. J. and E. H. Salisbury, which it is claimed amounted to about $ 1800 or $ 1900, but that of plaintiff was not included; and as an inducement to E. H. Salisbury to buy the land, the father allowed him in the sale $ 3000 as the son's part of the father's estate, the father having previously given to each of his other children an equal or greater amount; and the son was to pay his father in cash the balance of what the value of the farm amounted to, rating it all at forty dollars per acre, except about twelve acres which was rated at thirty-five dollars per acre. The total value of the farm was thus estimated to be about $ 8601. The evidence tended to show that A. J. was insolvent and that he had little or no other property except the said real estate.
Over plaintiff's objection defendants were allowed to show that while the bank held the note it extended to Jacob, the principal therein, without the consent of the sureties, time for payment, that is, for six months. After the expiration of the time extended, the defendant E. H. was called upon to pay the note, but he refused. Afterwards, the bank received from G. W. Wilson, the plaintiff's husband, the amount of the note and interest and wrote on its face the words "paid in full," and surrendered it. Thereafter, plaintiff brought suit against all three of the signers of the note, but dismissed as to defendant E. H. and took judgment by default against Jacob and A. J. Salisbury. Thereafter, this suit was instituted. The court found that the conveyance was voluntary to the extent of $ 3000, being the amount which was to be given E. H. Salisbury to equalize his share in the father's estate; and rendered judgment charging the land with a lien to the amount of plaintiff's judgment. The defendants appealed.
It is contended that plaintiff was an indorser of the note and, as such, was only secondarily liable, and was, therefore released by the unauthorized extension of time, it...
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