Wolff v. Walter

• Decision Date: 31 March 1874
• Citation: 56 Mo. 292
• Parties: MARCUS A. WOLFF, Appellant, v. LITTLETON H. WALTER, et al., Respondents.
• Court: Missouri Supreme Court

56 Mo. 292

MARCUS A. WOLFF, Appellant,

v.LITTLETON H. WALTER, et al., Respondents.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

W. B. Thompson and R. S. McDonald, for Appellant.

Glover & Shepley and Dryden & Dryden, for Respondents.ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in chancery, to have the acknowledgment of satisfaction of a deed of trust, which had been entered on the margin of the record of said deed, in the recorder's office of St. Louis county, vacated and annulled.

The petition alleges, that the deed of trust was executed by the defendants, Littleton H. Walter and Mary R. Walter, his wife, to the defendants, Purdy and Purdy, to secure the payment of a certain note, which was executed by the defendant Littleton H. Walter, to the defendant, Ann M. Eddy. The petition further charges that, at the maturity of the note, by a negotiation between the plaintiff and the defendant, Littleton H. Walter, who owed the note, the former purchased the note, and was to hold it for the accommodation of said Littleton H. Walter, for a few months; that, after such purchase and without his consent, Mrs. Ann M. Eddy, the former beneficiary, under the deed of trust, acknowledged satisfaction of the same on the margin of the record in the recorder's office of St. Louis county.

The several defendants answered separately. All of them except Littleton H. Walter, denied that the plaintiff had purchased the note in question, and alleged that the note had been paid off and discharged by the maker, Littleton H. Walter, at maturity, and that the defendant, Ann M. Eddy, by reason of such payment being legally bound to do so, did enter satisfaction of record of the deed of trust. The defendant, Littleton H. Walter, by not denying, admitted that the plaintiff had purchased the note, as stated in his petition.

When this suit was instituted, the defendants, Littleton H. and Mary R. Walter, were living separately and apart from each other, and she answered by her next friend. The property which was covered by the deed of trust was owned by the defendants, Littleton H. and Mary. R. Walter, as tenants in common, with a right of survivorship to the longest liver, in case there were no children of the marriage. It was not a tenancy by the entirety, but expressly declared by the deed to be a tenancy in common.

The only issue presented by the pleadings was, whether the note in dispute had been purchased by the plaintiff as alleged in his petition. The evidence was all directed to this point. The witnesses on both sides consisted of the parties to the suit and two bank officers in the bank of Benoist & Co., where the note had been deposited by the payee, Ann M. Eddy, for collection. The plaintiff and defendant, Littleton H. Walter, swore to the facts as stated in the petition. Ann M. Eddy, the owner of the note, swore that she did not sell or authorize the note to be sold to the plaintiff; that the bank officers only had authority to receive payment, and not to sell or transfer the note. The bank officers corroborated Ann M. Eddy, and testified that the note was paid at maturity; that on the day it matured, the plaintiff and...