text:
    Anderson, Respondent, v. Baumgartner et al., Appellants.
    1. The transfer of a debt secured by mortgage or deed of trust carries the security with it as an incident; if several promissory notes, secured by the same instrument, be assigned to different persons, the assignee of each note will, as a general rule, acquire an equitable interest in the mortgage.
    2. The interest which the assignee thus acquires in the security is purely equitable ; it may be lost through his negligence; it will be so lost where the rights of innocent purchasers intervene who have been misled by improper representations on his part or lulled into security by his silence when it was his duty to speak.

      Appeal from St. Louis Land Court.

    The object of this suit was to compel the trustees under a deed of trust to advertise and sell the premises described therein, and to apply the proceeds in payment of certain promissory notes alleged to be secured by said deed. Baum-gartner and Robbins, the trustees, and Andrew Christy, the assignee of other notes secured by the same deed of trust, and George B. Michael, the purchaser at a sale under a junior deed of trust, were made parties defendant to the suit. The petition states in substance that on the 19th day of May, 1846, one John S. Watson made forty promissory notes, payable to George M. Moore ; that nineteen of these notes were for the sum of eighty dollars each, and were made payable consecutively at intervals of three months .from their common date, May 19, 1846; that twenty of these notes were for $100 each, payable consecutively every three months after five years from their common date; that one of said notes was for $4,000, payable in ten years from date ; that the plaintiff, Anderson, is the bona fide assignee and holder under Moore of seven of said notes, to-wit: those payable in 51, 54, 57, 60, 63, 66 and 69 months from date; that all those falling due prior to said seven notes held by plaintiff were paid and satisfied; that all the other notes had been assigned to Andrew Christy; that to secure said notes Watson gave a deed of trust on certain real estate, in which, deed Baumgartner and Robbins were named as trustees; that Michael subsequently became the purchaser of the estate' of Watson in the land embraced by said deed of trust', and holds subject to said deed ; that at the time of his purchase he had both actual and constructive notice 1?hat the seven notes held by the plaintiff were a charge on the land and were unpaid. The plaintiff prayed the court for an order “ requiring and directing said Baumgartner and Robbins to advertise and sell the premises described in said deed of trust, in the manner in said deed provideed, and to apply the proceeds of such sale, according to the provisions of said deed, first, to the payment of the costs and expenses of said trust; next, to the payment of plaintiff’s demand, and the balance,” <fce.
    The defendants, Michael, Christy, and Baumgartner, answered alleging that after the making of said deed of trust by Watson to Moore, Watson made, on the 3d day of June, 1851, another deed of trust of the same premises to the plaintiff as trustee to secure a note of $7,000 to one Barclay, payable in one year after date ; that, shortly after, plaintiff, Anderson, purchased and became the owner of this last mentioned note and deed of trust; that the seven notes mentioned in the petition became due and unpaid and a sale under the deed of trust to Moore was advertised ; that, before the day of sale, said notes were paid by Watson or the plaintiff and were given up to be cancelled; that immediately thereafter Moore transferred the remaining notes to Christy and assigned to him the deed of trust; that afterwards the plaintiff made a sale of tbe premises to satisfy the second deed of trust to Barclay; and applied to Michael to become the purchaser, representing that’there was nothing unpaid on the first deed of trust except the notes transferred to Christy; that Michael applied to Moore and Christy for information, and was told by them that nothing was due on the first deed of trust except the notes in the hands of Christy ; that on the faith of these representations Michael became the purchaser under .the second deed of trust at the sum of $7,500 ; that he had no notice that said seven notes were subsisting encumbrances on the land; that Christy had no notice at the time of his purchase that said seven notes were still unsatisfied; that Baumgartner- refused to sell the land for the satisfaction of said notes, because he was informed by Moore, while he was a holder of the first deed of trust, that the notes had been paid.
    The cause was tried by the court without a jury. In its finding the court sets forth the execution of the notes and the deed of trust by Watson as stated in the petition, and then proceeds as follows: “That on the 21st day of June, 1851, said Watson executed a second deed of trust on the same property to the plaintiff as trustee to secure the payment of a second note for $7,000, payable to one Barclay ; that said property was sold by said Anderson, as such trustee, under said second deed of trust, on the 6th day of September, 1852, and purchased by one Carpenter, who transfei'red his bid to the defendant Michael, to whom the plaintiff, as such trustee, made a deed on the 13th of September, 1852; that Michael thereby acquired all title remaining in said Watson in said property subject to senior encumbrances ; that on the 16th day of March, 1851, all of said notes secured by said first deed of trust remaining unpaid and also said deed of trust were in the hands of Henry B. Belt, to whom they had previously been delivered by said Moore as collateral security for moneys advanced by Belt to Moore ; that said notes, when left by Moore with Belt, were endorsed by said Moore in blank without recourse ; that said property being then advertised for sale under said first deed of trust for the satisfaction of the notes then due, the plaintiff, at the time being the holder of the Barclay note secured by said second deed of trust, for the purpose of stopping said sale, and protecting liis interest as junior encumbrancer, became the purchaser for value of seven of said notes then due, namely : three for the sum of eighty dollars each, payable respectively in 51, 54 and 57 months after date, and four for the sum of one hundred dollars each, payable respectively in five years, 68, 66 and 69 months after date, which were then delivered by said Belt to said plaintiff thus endorsed, and said sale was stopped ; that said seven notes were the only notes then due and unpaid; that on the 16th of March, 1851, all the remaining unmatured and unpaid notes described in said deed of trust and the deed itself were passed over to defendant, Christy— the notes being assigned by Moore without recourse, who also transferred, in writing without seal, his interest in the deed of trust to said Christy; that said seven notes thus purchased by plaintiff have never been paid; and that he acquired them in good faith, and is the holder and owner of the same ; that afterwards he requested the said trustees to sell said property for the satisfaction of the notes held by him ; that Robbins was willing to execute the trust, but Baumgartner refused on the supposition that said notes had been paid, and were no longer a lien on said property.
    “ Thereupon the court declares the law as follows : That plaintiff is entitled to have satisfaction of his said seven notes and interest, by a sale of the property described in said deed of trust from Watson and wife to said Baumgartner and Robbins; said sale to be made according to the terms and conditions in said deed mentioned and herein recited. And the court doth order and'adjudge that said defendants, Baum-gartner and Robbins, do proceed within fifty days of the date hereof to advertise said property for sale, in the manner and upon the terms specified in said deed, and that they proceed to sell the same as therein authorized, and that out of the proceeds of said sale they pay, first, the costs and expenses of executing said trust, including tbe costs of this suit; secondly, whatever sum or sums of principal and interest may then appear to be due to said plaintiff upon said seven notes ; and dispose of the remainder, if any, of money in their hands, as by said deed directed, and that they report their proceedings herein to this court, without delay, after making such sale.”
    The defendants made a motion in review, which was overruled.

      Field, for appellants.
    I. The testimony fairly shows that the seven notes taken up by Anderson were paid under some arrangement with Watson the debtor. But supposing that Anderson held the seven notes as assignee under Moore, he did not, in the absence of any special agreement, by the mere fact of his being owner of a part of the mortgage debt, become proprietor of the mortgage security. A mortgage is an entire thing. It must be redeemed or foreclosed for the whole and not by parcels. Anderson simply relied on the personal credit of the debtor. (See Mandeville v. Welch, 5 Wheat. 277; Lang don v. Keith, 9 Yerm. 299.) Whatever may be the equity of Anderson in reference to Watson or Moore, he has no equity against Michael, who is a purchaser under Anderson himself without any notice of his pretended equity. No notice was given to Michael of the secret equity now set up by Anderson. It is no answer to say that the bidders at Anderson’s trust sale were advertised of interest notes being due on the Moore mortgage. At the least, this advertisement as testified to was deceptive and misleading. It is apparent that both parties understood at the time that Michael acquired the property subject only to the Moore notes in the hands of Christy. (See Brown v. Wheeler, 1 Root, 236 ; Morse v. Child, 6 N. H. 521; 1 John. Ch. 354.) The conduct of Anderson is marked with excessive negligence and imprudence. He took up the seven interest notes under circumstances fairly showing that he intended to pay and extinguish them. He asked for no assignment of any part of the mortgage to Moore. He gave no notice to Moore or his assignee and agent Belt that he claimed any interest in the mortgage. He subsequently conveys the property to Michael without any notice of his dormant equity. (Hughes v. McAllister, 15 Mo. 302.) The course of Michael was marked with that degree of caution which characterizes the conduct of prudent men in the transaction of business. He was distinctly informed by Moore that the seven notes now in controversy had been paid and satisfied. On the faith of this statement Michael became the purchaser under Anderson. Christy was assignee under Moore. The petition does not charge him with notice of Anderson’s pretended equity, and no such notice is found in the decision of the court. His equity is superior to that of Anderson.
    Hill, Glover & Hill, for respondent.
    I. The court was warranted by the evidence in its finding of facts. Anderson was a purchasér of the notes in good faith. He took them by assignment as a purchaser to protect his junior encumbrance. Moore’s understanding of the transaction subsequent to the transfer of the notes to Anderson, could not affect Anderson’s rights as a bona fide assignee. Michael was not the purchaser at the sale under the second deed, nor was he present at the sale. Carpenter became the purchaser with actual notice given by Anderson at the sale of the fact that .there were notes for back interest unpaid under the first deed of trust amounting to about $800. When Anderson purchased the seven notes, they were all that, were due. The seven notes amounted to $640 exclusive of interest — about $84 more. The recollection of Carpenter is vague and uncertain as to where these interest notes were said to be. At one time he says he thinks they were said to be in Christy’s hands, and that Anderson referred to Christy, but says he was not certain and that his recollection was indistinct. But two notes could have matured between maturity of the last of the seven notes held by Anderson and. the date of the sale in September, 1852, and these would amount to but little more than ¡¡>200 including interest to that time. It is not attempted to be shown or even pretended that Christy then held any interest notes which were due. The reasonable inference then is that Anderson referred to the back interest notes held by himself, and also spoke in the same connection of the deed of trust and remaining notes held by Christy, all which in the lapse of time had become confused in the mind of Carpenter. He is quite certain that notice was given by Anderson that interest notes were due, and thinks the amount was stated at about $800, which was in fact seventy-six dollars above the true amount, but as near as Anderson might be able to state without having the papers before him. It is only by supposing that Anderson was here speaking of the notes held by himself and as being held by him that the remaining facts in the case can be reconciled. There is not a particle of evidence that Anderson ever made any representations to either of the defendants inconsistent with the rights he claims in this suit — none that he was ever applied to for information; nor was he bound to give notice of his superior claim when selling under a junior trust. The finding should not be disturbed even though this court might find the facts differently.
    II. The conclusion and judgment of the court upon the facts as found were warranted by law. The assignment of a note secured by mortgage is, in equity, an assignment of the mortgage, unless there be some special provision by the parties to the contrary. (3 Johns. Oh. 322 ; 1 Boot, 248 ; 6 S. & M. 139 ; 4 Blackf. 539; 1 Johns. 580; 1 Penn. 280; 2 Ala. 190; Walker’s Oh. 221; 10 S. & M. 631; 21 Verm. 331; 8 Blackf. 447.) The notes first maturing have a preference.
   Richardson, Judge,

delivered the opinion of the court.

The doctrine is well settled that the transfer of a debt carries with it in equity the mortgage security; and if several notes secured in the same mortgage are assigned to different persons, as a general rule the holder of each note will acquire by the assignment an equitable interest in the mortgage. (Keyes v. Wood, 21 Verm. 331; 1 Hilliard on Mortg. chap. 11; Thayer v. Campbell, 9 Mo. 277.) The security is only an incident to the debt; and, if the principal be assigned and there be no agreement to- the contrary, the mortgage will pass with it. The interest however which the assignee acquires in the mortgage is purely equitable, and will be controlled by the considerations that operate on courts of equity in adjusting conflicting equities between different parties. It will give way to a superior equity and may be lost by the negligence of the party asserting it. The assignment of the debt will be effectual to transfer the security as between the assignee and the parties to the mortgage, but it may be inoperative for that purpose when the rights of innocent purchasers intervene, who have been misled by the improper representations of the assignee, or lulled into security by his silence when it was his duty to speak.

It appears that when Christy purchased the notes which he holds, he was told by Moore that all the other notes had been paid; and when Michael applied to Moore, who then held the Christy notes, for information on the subject, with the view of purchasing under the junior deed, he was likewise told that all the notes had been paid except those now in Christy’s hands. If Christy and Michael did not know that the plaintiff held any of the notes, to whom else could they apply for information except to Moore ? How were they to know of the plaintiff’s dormant equity ? Michael, then, having been informed by Moore that the notes which the plaintiff has had been paid, had every reason to act on the information, and no ordinary diligence could have apprised him of the plaintiff’s claim. "When Anderson came to sell under the second encumbrance, in which he had united in himself the double interest of trustee and beneficiary, the evidence shows that there was inquiry as to the amount due under the first deed. Common justice to the bidders required him to give such information as be bad, and, claiming an interest in the first deed, which was not a matter of record or necessarily known to any person present, it was his duty to make it known. Dr. Carpenter, a witness introduced by the plaintiff, testified that he bought the property at the sale; that Mr. Anderson made a statement at the sale in relation to the deed of trust to Moore and the interest notes, but did not speak of having any of the notes in his possession. He further stated, on cross-examination, that the unpaid interest notes were said to be in Christy’s hands, and that plaintiff referred him to Christy for the amount due; and though in his re-examination by the plaintiff he broke somewhat the force of this statement by the qualification that upon reflection he was not certain “ whether Anderson said where the notes were,” it does not seem that Mr. Anderson advised any person at the sale of the existence of the seven notes, or that he had any interest in the first encumbrance. It is true that Michael was not at the sale, but Dr. Carpenter states that Anderson requested him to surrrender his bid to Michael, and that, in consideration of five hundred dollars paid to him by Anderson, and the agreement of Michael to indemnify him against a security debt of one thousand dollars, he substituted Michael in his place. The plaintiff now asserts that he had in his possession, at the time of the sale under the second deed, seven of the notes secured by the first, and seeks to have the property purchased at his own sale subjected to the payment of these notes. The evidence shows that Michael had every reason to believe that the seven notes had been paid ; and the question now is, shall the plaintiff lose his lien, or shall Michael’s property, purchased without notice of the lien, be subjected to it ? If the plaintiff had used proper diligence at or before the sale in making known his silent claim, the purchaser would have bought with his eyes open and the property would have remained charged with the lien ; but his negligence misled others, and his equity must yield to the better right of the innocent purchaser. It is said that the first encumbrance was duly recorded, and that all persons were bound to take notice of it. This is true; but of what was the registry notice ? The defendants were presumed to know that there was a prior encumbrance; but, as the mortgagee himself said that the seven notes in question were paid, and the plaintiff at his sale, under the second deed, did not disclose his interest, though th.e notes were in his possession, the defendants reasonably inferred that they had been paid as they matured. The plaintiff conducted the sale ; the amount due on the first encumbrance was the subject of conversation; and he could not have forgotten his own debt, if he intended to assert it against the property; and a word from him in season would have avoided this whole controversy.

All the judges concurring, the judgment will be reversed.


source: Caselaw Access Project

author: Richardson, Judge

license: Public Domain

text:
    Aubuchon et al., Plaintiffs in Error, v. Ames, Defendant in Error.
    1. Where a field lot confirmed by the second section of the act of Congress of April 29, 1816, has a definite and certain location, the statute of limitation ■will run in favor of an adverse possession prior to a survey by the United States, although in the tabular list of the recorder the claim was stated to be “ confirmed to be surveyed.”

      Error to St. Louis Court of Common Pleas.

    This was an action of ejectment to recover an undivided three-tenths of so much of a tract of three by forty arpens in the “ Grand Prairie common field” of St. Louis as the defendant should be shown to be in possession of. Plaintiffs claim title as the legal representatives of widow Hebert, to whose representatives the said lot was confirmed by act of Congress of April 29, 1816. The facts of this case, as they appeared in evidence, are the same as those of the case of Aubuclion v. Murphy. (See 22 Mo. 115.) In this case evidence was introduced by defendant showing the identity of Charles Sanguinet, who made the memorandum of sale of the property to Brazeau.

      The court, at the instance of the defendant, gave the following instructions and the plaintiff duly excepted thereto : “1. If the jury believe from the evidence that the widow Hebert, from whom the plaintiff claims title, was the same person of whose estate Charles Sanguinet was appointed administrator, as given in evidence, and that the writing given in evi-dance of Charles Sanguinet to Joseph Brazeau was made by said Sanguinet as said administrator, and that it embraced any of the land sued for in this suit, and that the deeds given in evidence respectively, of said Brazeau and wife to Louis and Auguste Brazeau, and of said Louis and Auguste to Angus L. Langham, and of said Langham by the sheriff of the county of St. Louis to Brown Cozzens, and of said Coz-zens to Edward Bates, and of said Bates to the defendant Ames, embraced any of the land sued for in this suit, and that said Langham as early as 1819 entered upon and took possession thereof, under said deed of Louis and Auguste, and made costly and notorious improvements on the same, and dwelt there, and that the possession and improvement of the same have ever since been kept and continued publicly, expensively and conspicuously by said Langham, Cozzens and Ames, and others under or through them respectively, successively, under a claim of right thereto by virtue of said writing and deeds, and that Louis and Henry Trudeau and Mrs. Ranger, grantors of the plaintiff, have been of the age of twenty-one years, and Mrs. Ranger unmarried, also for twenty years next before the commencement of this suit, then the jury may presume that said Sanguinet did lawfully sell said land to said Joseph Brazeau, and find for the defendant as to said land. 2. If the jury believe from the evidence that the widow Hebert, from whom the plaintiff claims title, was the same person who is a party to the instrument of conveyance of widow Hebert to Joseph Labuxiere, given in evidence, and that said instrument embraces any of the land sued for in this suit, then they should find for the defendant as to so much of the land sued for in this suit as is embraced in said instrument. 3. If the jury believe from the evidence that the defendant and those through whom he claims and holds possession of so much of the land sued for as he was in possession of when this suit was begun, had had the continuous possession thereof for and during twenty years next before the commencement of this suit, claiming the same adversely to all others, and that twenty years before this suit was begun Henry and Louis Trudeau, and Mrs. Ranger, the grantors of the plaintiff, were twenty-one years of age, and Mrs. Ranger unmarried also, and that their parents were also dead as long before this suit was begun, then they should find for the defendant. 4. And if the jury believe from the evidence that the defendant and those through whom he claims the land in controversy entered upon the same under deeds embracing the same, the jury should find that the possession so taken of any part embraced in such deeds was a possession of the whole, unless the contrary be proved, and every possession thereof by others, by their respective permissions or authority, was their possession respectively.”
    The plaintiff asked the following instructions, which the court refused, and the plaintiff duly excepted: “ 5. The paper purporting to be a deed from Charles Sanguinet to Joseph Brazeau, dated the 26th December, 1786, a copy of the record of which has been given in evidence by the defendant, and the paper purporting to be archive No. 2389, a copy of the record of which has been given in evidence by the defendant, do not, nor does either of them pass to said Brazeau any title or claim to the premises therein described that had belonged to the widow Hebert in her lifetime. 6. The statute of limitations would not begin to run against the legal representatives of the widow Hebert as to the land mentioned in the confirmation papers given in evidence by the plaintiff, before the execution of the United States survey No. 1256, given in evidence by the plaintiff.”
    The plaintiff took a nonsuit with leave, &c.

      Polk, for plaintiff in error.
    I. The instrument purporting to be a memorandum of sale by Charles Sanguinet ought to have been excluded from the jury.
    II. The statute of limitations did not begin to run in this case until the 29th of April, 1851, the date of the approval of the survey by the United States of the confirmation given in evidence. (West v. Cochran, 17 How. 416.)
    III. The first instruction is erroneous. (See 1 Phil. Ev. 161; Cow. & Hill’s notes, 857; 2 Conn. 631; Dessaunier v. Murphy, 22 Mo. 95.)

      Krum & Harding, for defendant in error.
    I. The memorandum of sale was properly admitted. (Au-buchon v. Murphy, 22 Mo. 115.)
    II. A survey was not necessary in this case. The statute of limitations ran prior to the survey.
    III. The court committed no error in giving or refusing instructions.
   Richardson, Judge

delivered the opinion of the court.

This suit is brought to recover an undivided interest in a common field lot situate in the Grand Prairie of St. Louis, conceded to the widow Hebert and confirmed to her representatives by the second section of the act of Congress approved April 29, 1816, entitled “ An act for the confirmation of certain claims to land in the western district of the state of Louisiana and in the territory of Missouri.” Under the proper head in the tabular list of decisions by the recorder reported to Congress and opposite the claim of widow Hebert is this remark: “ Confirmed 120 arpens to be surveyed.” The survey was executed in 1838, but not approved until the 29th of April, 1851, just thirty-five years after the confirmation, and we are not apprised that a patent has yet been issued.

The controlling question in the case is, when the statute of limitations began to run against the plaintiff in favor of the adverse possession ?

The act of 1807 respecting claims to land in the territory of New Orleans and the district of Louisiana contained no words of present grant, but was prospective in its operation; and the rights of claimants were dependent on acts to be performed by them and the subsequent decisions of the commissioners. The fee that resided iñ the United States was not then passed to the claimants, and the act only undertook to provide measures for ascertaining and adjusting claims without confirming them, “ but gave to the board of commissioners power to adjudicate claims against the United States and conclude the government as to the question of right in the claimant.” Whether any claim would ever be confirmed was not known when the act was approved, for confirmations depended on the proofs of the parties and the decisions of the board; and if commissioners had not been appointed, or had failed to act, or had decided adversely to the claimants, the law would not have benefitted any person.

But the act of 29th April, 1816, spoke in a different tone and tense, and declared that the claims embraced in the recorder’s reports, which had received his favorable decision, “ shall be and the same are hereby confirmed.” A confirmation by this act carried the legal title, and being a direct grant of the fee by Congress was the highest evidence and grade of title. (Strother v. Lucas, 12 Peters, 454; Marsh v. Brooks, 14 How. 524.) No one in this state has ever doubted that land confirmed by this act was subject to taxation, that it was vendible under execution, and passed by will or deed, or under the statute of descents; and it has never been supposed that these incidents of ownership were suspended until it was the pleasure of the deputy surveyor to make the survey, or the clerks in the land department at Washington to prepare the patents.

In Grignon v. Astor, 2 How. 369, the claim of Pierre Grignon was confirmed by an act of Congress passed in February, 1823, for which the patent did not issue until 1829, and in the meantime the land having been sold by his administrator under an order of court, it was contended that the sale was void, because he had no.such estate, until the emanation of the patent, as could be sold'; but the court observed that “ the title became a legal one by its confirmation by the act of Congress of February, 1823, which was equivalent to a patent,” and that “ it was a higher evidence of title, as it was the direct grant of the fee, which had been in the United States, by the government itself, whereas the patent was only the act of its ministerial officers.”

The confirmation in the case of West and Cochran, 17 How. 408, was under the act of 1807, which, we think, is essentially different from the act of 1816; and it may be doubted whether the doctrine of that case was intended to apply to any claims except such as are so uncertain as to their boundaries that public surveys are necessary to locate them; for the learned judge who delivered the opinion in that case, after saying in the later case of Stanford and Taylor, 18 How. 412, that “ where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed and severed from the public domain and the land of others,” attaches to no land until it is designated by a survey, proceeds then to show that the concession to Angela Ghauvin was so indefinite in its boundary that a survey was required to attach it to any land.

It is not pretended in this case that the concession to the widow Hebert was uncertain as to its location, or that it required a survey to identify it. It was one of the common field lots in the Grand Prairie, bounded on the north by the lot of Bizette, and on the south by Kiercereau, and its definite location was no doubt quite as well known forty years ago, when Langham built on the tract, as it has been since the approval of the survey in 1851. Since 1818, buildings at different times have been erected on this land; it has been occupied and owned by various persons ; it has been the subject of repeated sales and conveyances, and all the time since the confirmation has been treated as private property.

Our laws from 1825 down to the present time have authorized actions of ejectment to be maintained on confirmations under tlie act of 1816, and ther.e is no reason in justice and no principle of public policy why the statute of limitar tions should be so suspended until a survey is made or the patent issues in favor of a title like the one in this case on which an action of ejectment could have been maintained more than thirty years ago. If a party is under disability or can not sue or recover on his title because something remains to be done by the government to give him a right of action, time should not be counted against him in favor of an adverse possession. But when a full right of action in all the forms of law is given, the repose of the country requires that the same measure of indiscriminate justice should be applied to actions on titles of this character that governs other actions of ejectment.

The view we have taken of the case renders it necessary to extend this opinion further or to notice the instructions in detail; and, in relation to the first instruction given for the defendant it is sufficient to say that, whether the hypothetical facts stated in it warranted the jury in presuming that San-guinet lawfully sold the land to Brazeau is immaterial and need not be discussed or decided, for the instruction contained another distinct element independent of the doctrine of presumption, and the verdict could not have been made on this instruction unless the jury had found the existence of facts absolutely necessary to establish a perfect defence under the statute of limitations.

All the judges concurring, the judgment will be affirmed.


author: Scott, Judge,

text:
    Adams et al., Respondents, v. Wiggins Ferry Co., Appellants.
    1. If, in a case of collision, both parties are in fault and the fault or negligence of each contributes to the injuries received, neither party can be made to respond to the other. This doctrine does not, however, apply to a case in which the fault or negligence of the party seeking a recovery contributes only remotely and indirectly to the injury complained of.

      2. If Roth parties actively contribute to the injury at the time of its commission, there can be no recovery by either; where, however, the fault or negligence of one party is merely passive, as where his wrong consists in mooring his boat in a prohibited place at a wharf, he may recover for an injury arising from a collision if the other party does not exercise ordinary care and prudence.

      Appeal from St. Louis Court of Common Pleas.

    This was an action to recover damages for the loss, through the negligence of defendant, of a barge belonging to the plaintiff. The barge was lying at the wharf in the city of St. Louis, and was struck by a ferry-boat belonging to defendant. The defendant denied the negligence alleged, and alleged that the barge was lying at a point at the wharf that was appropriated by the city ordinance to the ferry-boats belonging to defendant; that the injury of which plaintiffs complained resulted from the wrong of plaintiffs in thus mooring their barge.
    The following instruction was given to the jury at the instance of plaintiff: “ 1. If the jury shall believe that the barge or wood-boat in question was moored in a place not permitted by the city authorities at the time of the collision referred to in the petition, and that notwithstanding this the ferry-boat of defendant could have reached the landing by the exercise of ordinary care and skill on the part of 'those who had charge of said ferry-boat, without inflicting the injury complained of, then the fact of her being so out of place constitutes of itself no defence to this action.”
    The court, of. its own motion, gave the following instructions : “ 2. If the jury believe from the evidence that the plaintiffs were co-partners at the time of the injury complained of, and that the barge and wood in question were their property, and that the injury to said property was caused by the negligence or unskillfulness of the officers or crew of the ferry-boat belonging to the defendant, without any fault on the part of the owners, officers or crew of the barge contributing substantially thereto, the jury should find for the plaintiffs and assess the damages sustained thereby. B. If the injury was caused by the negligence or unskillfulness of the plaintiffs, or of the officers or crew of said barge, or if such negligence or unskillfulness contributed substantially to produce said injury, or if the injury was not caused by negligence or unskillfulness on the part of the officers or crew of the ferry-boat or agents of the defendant, then the jury should find for the defendant. 4. If both parties were in fault and the fault of each contributed substantially to produce said injury, or if neither was in fault, the jury should find for the defendant. 5. If the barge was moored and left by her owners in a hazardous position, and the officers and crew of the ferry-boat used ordinary care and skill to avoid injuring the barge, and the injury complained of occurred notwithstanding said care, diligence and skill on the part of said ferry-boat, the jury should find for the defendant. 6. If the barge was in a dangerous position at the time, and the injury complained of would not have occurred if ordinary care, diligence and skill had been used on the part of the ferry-boat, then the jury should find for the plaintiffs, unless the plaintiffs, by their negligence or unskillfulness at the time, contributed substantially to said injury.”
    The court gave the following instruction at the instance of defendant: “7. If the jury believe from the evidence that the injury done to the barge was occasioned by the negligence of both plaintiffs and the defendant, and their mutual negligence caused or produced the injury, the plaintiffs can not recover, and the jury will find for the defendant.”
    Numerous instructions asked by defendant were refused. The jury found for plaintiffs.

      B. A. Hill, for appellant.
    I. The court erred in giving and refusing instructions. If the plaintiffs’ barge was moored in an improper place according to the ordinances of the port, the plaintiffs can not recover unless the defendant wilfully ran into her without any necessity for so doing and sunk her. Defendant was not required to use any other than ordinary precautions. The plaintiffs were in fault in mooring the barge at tbe ferry landing. Being in fault, tliey can not recover unless defendant wilfully ran into the barge without occasion. Plaintiffs’ fault tended to produce the injury. A vessel injured by negligent mooring can not recover for the damages received. (1 How. 89 ; Angelí on Carr. § 643-6, 633, 638 ; 29 Eng. Law & Equity, 49.)
    Gray, for respondents.
    I. The instructions given were legal and proper, and covered the whole law of the case fully and fairly. (Angelí on Carr. § 638-9; Sedg. on Dam. 469, 470; 11 East. 60; 9 Carr. & Pag. 601, 613 ; 8 M. & W. 244; 1 Scott, 392; 16 Conn. 420 ; 19 Conn. 566 ; 1 Denio, 91; 3 Ohio, State, 172.) When both parties are in fault, the plaintiff remotely and the defendant proximately, the plaintiff may be entitled to recover. (10 M. & W. 545; 24 Term. 488; 3 Ohio, State, 172 ; 4 Id. 474,)
   Scott, Judge,

delivered the opinion of the court.

The rule that there can be no recovery when both plaintiff and defendant are in fault, and each, by his negligence or otherwise, has contributed proximately and directly to the injury, has its most frequent application in cases of collisions of vessels, carriages and like vehicles, when they are in motion and on the public thoroughfares. But in such collisions, if one party finds the other in fault, he can not wantonly or intentionally inflict an injury upon him. The principle above stated does not apply to cases in which the fault or neglect of the plaintiff has contributed remotely to the injury. Because one has committed a fault or been guilty of a negligence, he does not thereby place himself at the mercy of every one who may encounter or come in the way of the object in relation to which the fault or negligence has been committed or imputed. If a person discovers that a fault has been committed by another, he is not thereby released from the obligation of conducting himself with ordinary care and prudence in relation to bina iii order to avoid doing an injury.

In the case of Butterfield v. Forrester, 11 East, 60,- tlie defendant, for tlie purpose of making some repairs to bis bouse wbicb was close to tbe road-side at one end of tlie town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. The plaintiff at an hour in the evening when there was light enough to discover the obstruction at the distance of one hundred yards was riding very violently, and, not observing the obstruction, his horse ran against it and fell with his rider, who was much hurt in consequence of the accident. In answer to the plaintiff’s action, Lord Ellenborougli said, a party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use ordinary and common caution to be in the right. In cases of persons riding upon what is considered the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault, will not dispense with another’s using ordinary care for himself. Two things must concur to support this action — an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. In the case of Davis v. Mann, 10 Mees. & Weis. 545, the plaintiff, having fettered the fore feet of an ass, turned it into a public highway, and as the ass was grazing on the side of the road about eight yards wide, the defendant’s wagon with three horses, the driver being behind, coming down a descent at a smart pace, ran against the ass, knocked it down, and the wheels running over it it soon after died. The plaintiff recovered. The court said, that, although the ass was wrongfully on the road, that the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road. In tlie case of Kerwhacker v. The Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio, State, 189, it is said, that the mere fact, however, that one person is in the wrong, does not of itself discharge another from the observance of a due and proper care toward him, or the duty of so exercising his own rights as not to injure him unnecessarily. There have been numerous adjudications, both in England and in this country, where parties have been held responsible for their negligence, although the party injured was, at the time of the occurrence, culpable, and, in some of the cases, in the actual commission of a trespass. In the case of Trow v. The Vermont Central Railroad Co., 24 Verm. 488, it was held that when the negligence of the defendant is proximate and that of the plaintiff remote, the action can then well be sustained although the plaintiff is not entirely without fault. This seems to be now settled in England and in this country. Therefore, if there be negligence on the part of the plaintiff, yet, if at the time the injury is committed, it might have been avoided by the defendant in the exercise of reasonable care and prudence, an action will lie for the injury. The case of the New Haven Steamboat Co. v. Vanderbilt, 16 Conn. 428, was one for an injury to a steamboat. The defendant claimed and offered evidence that at the time of the injury the lights of the boat were not up according to the statute law of the state, and prayed the court to instruct if this was so the plaintiff could not recover. The court said that, while on the one hand a party shall not recover damages for an injury which has been brought on himself, neither shall he be allowed to protect himself from an injury which he has committed because the party injured was in the wrong, unless such wrong contributed to produce the injury, and even then it would seem a party is bound to use common and ordinary caution to be in the right. Sedgwick, in his work on the law of Damages, p. 470, approves the principle of the case of Davis v. Mann, 10 Mees. & Wels., to which reference has been made. So does Angell, in his treatise on the law of Carriers, p. 532 ; as also Judge Redheld, in his book on Railways.

We liave stated the facts of most of the cases to which we have referred because it seemed necessary to do so in order fully to understand their bearing upon the matter before us. We conceive the law as deduced from them to be, that, although where both parties are in fault, where there is negligence on both sides, and both actively contribute to the injury at the time of its commission, there can be no recovery, yet, where there is a mere passive fault or negligence on the part of the plaintiff, the defendant is bound to the observance of ordinary care and prudence in order to avoid doing him a wrong. In the case before us, the boat received the injury complained of when she was moored, and although she was in a prohibited place — one from which she had been lawfully ordered to be removed — the defendant was not released from the obligation imposed both by law and sound morality of using ordinary care and diligence in order to avoid injuring her. If by the fault of the plaintiffs, in leaving their boat at the place where she was found, the defendant could not avoid injuring her, hy the observance of ordinary care and prudence, they would be without redress.

We are of the opinion that the instructions given put the law of the case correctly to the jury, and, although some of the refused instructions may have contained correct legal propositions, yet, as the instructions given embodied the law of the case, the defendant was not prejudiced hy their refusal.

Judge Napton concurring, judgment affirmed; Judge Richardson dissenting.


author: Richardson, Judge,

text:
    Bersch, Respondent, v. Schneider, Appellant.
    1. A judgment rendered by a justice of the peace is void unless it appears on the face of the proceedings that the justice acquired jurisdiction of the cause by service of process on the defendant or by his appearance.

      Appeal from St. Louis Law Commissioner’’s Court.

    This was an action (originally commenced before a justice of the peace) on a due bill or non-negotiable promissory note • for one hundred dollars executed by defendant Schneider in favor of one George Woldsmith and assigned by said Wold-smith to the plaintiff, Bersch. At the trial the plaintiff introduced in evidence the note and proved the assignment to himself. The defendant then introduced in evidence certain entries from the docket of Samuel Treadway, a justice of the peace in St. Louis county, in a case wherein Caspar Stalle, Henry Schneipel and Jerome Downey were plaintiffs, and George Woldsmith and Jacob Hocli defendants. From these entries it appeared that a judgment was rendered for plaintiffs against the defendants Woldsmith and Hoch for $89.80. It did not appear that the defendants or either of them had been served with process, or had appeared to the suit. It also appeared that two several executions had issued against defendants, and that under the last execution Schneider was garnished as a debtor of Woldsmith, and that judgment was rendered against him as garnishee for the amount of the note in controversy in the present, suit.
    At the instance of the plaintiff the. court gave the following instructions : “ 1. A judgment entered up against Schneider by Justice McDonald in favor of Caspar Stalle upon said Schneider’s being summoned as shown in the return of the execution issued by Justice Treadway, is no bar to the plaintiff’s recovery in this suit. There is no judgment upon which the executions' read in evidence could issue. 2. There is no judgment in favor of Caspar Stalle, Henry Schneipel and Jerome Downey, plaintiffs in the execution upon which Schneider was garnished, against said Schneider. 3. There is no judgment in favor of Caspar Stalle, Henry Schneipel and Jerome Downey against George Woldsmith and Jacob Iioch upon which the executions read in evidence could issue. 4. The plaintiff is entitled to recover the full amount of the note sued on with interest.”
    The court found for plaintiff.

      C. C. Simmons, for appellant.

      Bay, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The defence set up to defeat a recovery on the note is that a judgment had been recovered against the defendant in a garnishment proceeding under an execution issued on a judgment rendered by Justice Treadway in favor of Caspar Stalle and others, against George Woldsmith, the payee and assignor of the note. The merits of the defence must depend on the validity of the original judgment, for the proceedings that followed after the defendant was garnished can not be upheld unless there was a valid judgment to support them and to authorize .the execution. The transcript of Justice Treadway .does not show that the defendant appeared, or that process was ever issued or served; and consequently he did not obtain jurisdiction over the defendant, and the proceeding was coram non judice. Jurisdiction will be presumed as to courts of general authority, but as to inferior courts the rule is different, and those who claim rights or exemptions under their proceedings must show their jurisdiction. (State v. Metzger, 26 Mo. 65.)

The defendant necessarily relied on the first judgment to sustain the subsequent proceedings under it, and as it was rendered, so far as the transcript shows, without process or appearance, it is void. (Biglow v. Stearn, 19 John. 39.) The judgment will be affirmed;

the other judges concurring.


text:
    The State, to use of Bredell’s Executor, Plaintiff in Error, v. Baldwin et al., Defendants in Error.
    1. A surviving partner retained possession of the partnership effects and gave bond under sections 60 and 51 of the first article of the administration act of 1846 (B. C. 1845, p. 70); a settlement was made by Mm in the probate court and an order was made by said court apportioning to the estate of the deceased partner one-half of the balance found to he in the hands of such surviving partner. Held, in an action on the bond to recover a debt due to the deceased partner for money advanced by him to the firm, that this settlement was not conclusive as against his estate as to the amount due thereto from the surviving partner, or as to the amount of assets in the hands of the latter.

      Error to St. Louis Court of Common Pleas.

    Smith Baldwin and John C. Bredell were partners in trade. John 0. Bredell died January 5th, 1853, leaving a will, which was duly admitted to probate, by which Edward Bre-dell was appointed his executor. Said Edward Bredell received letters testamentary, dated January 15, 1853. On the 6th of April, 1853, he gave bond as surviving partner under sections 59 and 51 of the first article of the administration act of 1845, (see B,. C. 1845, p. 70,) and undertook the management of the partnership property. This action was brought for a breach of the condition of said bond by said Baldwin in not paying, out of the partnership effects which came into his hands as surviving partner, a debt due from the firm to said John C. Bredell, deceased.
    The cause was tried by the court without a jury. Evidence was introduced tending to prove substantially the following facts: Baldwin, as surviving partner, took into his possession and under his management property of the said firm to the amount of $4,081.11; that of said property there remained in his hands, after deducting disbursements, on the 22d of March, 1856, the sum of $3,566.16. On that day Baldwin appeared in the probate court and exhibited his account for the final settlement of the concerns of the partnership. The following is an entry of that date in the records of said court: “ Smith Baldwin, surviving partner of the firm of Bredell & Baldwin, appears and exhibits his account for the final settlement of the concerns of said co-partnership ; whereupon the court examines and finds that at his last settlement with the court there was a balance against him in favor of said estate of $3,759.91; that no assets since came to his hands, and he is entitled to credits in the sum of $193.75, leaving a balance in his hands in favor of said co-partnership of $3,566.16; and the court apportions said balanceas follows: To Smith Baldwin, $1,783.08; and the court sets aside the order of payment made on the fifteenth of this month, and apportions to the estate of John C. Bre-dell, deceased, $1,783.08, and orders that be pay tbe same without delay to the executor of said deceased, and on the production of his receipt therefor he will be finally discharged.”
    The evidence also showed that at the death of Bredell the firm of Bredell & Baldwin was indebted to him in the sum of $8,297.44 for moneys advanced to said partnership in the course of its prosecution of its business, before the death of said Bredell, over and above the capital he was required to put into partnership. This sum was reduced after the death of Bredell to the sum of $5,524.50. Baldwin did not, in any account rendered by him as surviving partner, include said debt of said firm to Bredell, nor did he apply any part of the property of said copartnership that came into his hands to the payment of said debt. Said debt still remains due and unpaid. After the commencement of this suit the defendant tendered to plaintiff the one-lialf of the said balance of $3,566.16, which plaintiff refused to receive.
    The court ruled that the above “ order of the probate court of St. Louis county was final and conclusive upon the said Edward Bredell, as executor of the said John C. Bre-dell, as to the proportion to which he was entitled as such executor of the balance of $3,566.16 in the hands of said Smith Baldwin as surviving partner of the firm of Bredell & Baldwin, and that the plaintiff could recover in this action only the amount ordered by the probate court to be paid to the said executor, with interest.”
    The plaintiff thereupon suffered a nonsuit with leave to move to set the same aside.
    Drake, for plaintiff in error.
    I. The court misconceived the nature of this action. The plaintiff did not sue to recover a distributive share of the partnership effects after the payment of partnership debts. He seeks the payment of a debt which the surviving partner was by the terms of his bond bound to pay. The executor was entitled to the payment of the debt of the firm. He had a specific lien on tlie partnership effects. (Coll, on Part. § 125 ; Sto. on Part. § 97.)
    II. The order of the probate court is no defence. The executor was in no way a party to the order of the court. (1 Greenl. Ev. § 523.) The probate court had no jurisdiction to make an order of distribution between the surviving partner and the executor of the deceased partner! Its action in that respect was wholly extra-judicial and void. The act of 1845 does not authorize the probate court to exercise authority over the surviving partner, except to cite him to account and to adjudicate upon his account. This does not include a power to order distribution between the surviving and the executor of a deceased partner.

      H. N. Hart, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

This suit was not brought to recover the distributive share coming to the estate of the deceased partner on a final settlement of accounts after the payment of all partnership liabilities, but it is to recover a debt alleged to be due to the estate of the deceased partner by the late firm of which he was a member, on the ground that the surviving partner has partnership assets in his hands subject to be appropriated to the payment of the debt. One partner may be the creditor of a firm of which he is a member, and has a right to require payment out of the partnership assets like other creditors before they are divided and before either of the partners can claim any right thereto. Until all the partnership debts are paid neither partner has a right to withdraw any thing on account of capital or profits, but all that remains, after the payment of the claims of other creditors, will be charged in equity with a lien for the payment of any debt due to either of the partners. One of the conditions of the bond required to be executed by a surviving partner who undertakes to wind up the partnership affairs is, that he will apply the assets to the payment of the partnership debts; and no reason is perceived why the personal representative of a deceased partner, who is a firm creditor and whose debt is properly ascertained, may not sue upon the bond for a breach of this condition.

The settlement which the defendant made with the probate court was ex parte; no notice was given as required as in case of administrators; and as the court had no means of knowing, except from the defendant’s statement, that all the debts had been paid, it would be unjust to give to such a settlement the effect of silencing every unpaid creditor. In ordinary cases of administration the creditors are required to. prove their demands before the court, and all claims are barred which are not presented within three years, so that when an administrator, after giving notice of his intention to make a final settlement, appears for that purpose, the record would show every creditor of the estate, and the court has the means of knowing, before making an order of distribution, that all the debts have been paid. But not so in a case like this, for the law does not require partnership demands to be allowed by the court; the surviving partner is not required to give notice of his intention to make a settlement, and the court has no means of knowing by proof or otherwise that all the debts have been paid.

The instruction therefore which the court gave that the settlement made by the defendant was final and conclusive upon the exeeutor of the deceased partner, we think, was erroneous, and for that reason the judgment will be reversed and the cause remanded.

The other judges concur.


author: Napton, Judge,

text:
    Woods et al., Respondents, v. Timmerman’s Assignee, Appellant.
    1. Assignments for the benefit of a portion of the creditors of the assignor are valid notwithstanding section 39 of the act concerning voluntary assignments ; that section operates to overthrow all provisions in assignments giving preferences among the designated creditors.
    2. A provision in an assignment providing for the payment of a particular debt of a designated creditor would he valid.

      Appeal from Si. Louis Circuit Court.

    Francis Timmerman made an assignment of his effects to William Muir for the benefit of his creditors. In the schedule annexed to this deed the claim of the plaintiffs is thus described: “ Names — Messrs. Woods, Christy & Co.; Residence — Main street, St. Louis ; Class — Two notes ; Amount —^554.55.” Timmei’man was further indebted on a note for $3,180.50, payable to the order of one of the plaintiffs individually, but which was claimed to belong to the firm of Woods, Christy & Co. This note was mentioned in the deed of assignment. It was secured by a deed of trust executed by Timmerman on certain leasehold proporty in St. Louis. •Plaintiffs sold the leasehold under the deed of trust and were paid out of the proceeds, on account of said note, $1,476.57. They afterwards presented the note, with the balance due on it, to the assignee for allowance and payment under the assignment. It is admitted that the proceeds of the assets assigned will pay the creditors mentioned in the schedule a dividend of less than fifty per cent., even should the plaintiffs claim on this note not be allowed. The assignee certified the claim to the circuit court. A jury, on an issue submitted to them, found that the note, though made payable to an individual member of the firm, was the property of plaintiffs. The plaintiffs moved the court to grant an order requiring the assignee to allow the claim of the plaintiffs on said note for $3,130.50, and to a pro rata dividend on the balance due thereon. The court granted the motion and required the assignee to allow the claim and pay it pro rata with the other claims.

      Shepley and P. B. Garesché, for appellant.
    I. The assignment of Timmerman was for the purpose of paying certain specified creditors certain specified debts. No provision is made for paying any other debts of the grantor than those named. The note of $3,130.50 was not included in said assignment and can take no benefit from the property assigned.

      S. T. & A. D. Glover, for respondent.
    I. It was the duty of the assignee “ to adjust and allow the demand” of the plaintiffs. (R. C. 1845, p. 130, § 16.) The assignee not doing so that duty devolved on the circuit court. The deed of assignment could not fix the amount of plaintiffs’ demand. The assignor had no power so to conclude the matter, nor could the assignee and plaintiffs conjointly. What was owing in point of fact was a question to be investigated and decided by legal evidence, and this was to-be done, in contemplation of the law, in defence of the deed and the agreement of the assignor, assignee, and the beneficiary specially concerned. The assignor could not put the plaintiffs’ demand higher or lower than it was in fact. He could neither enlarge nor diminish the plaintiffs’ demand. It was the duty of the court to ascertain the debt due independently of the way in which it had been fixed by the assignor. The purpose of the assignor was manifestly to divide his property pro rata among all his creditors.
   Napton, Judge,

delivered the opinion of the court.

It has been heretofore determined that, under our recent statute concerning assignments, debtors may still prefer some creditors over others, although they <can not make distinctions between the preferred claims. Such a construction, although falling far short of the goal which the legislature appeared to be arriving at in the 39th section of the law, Avas rendered necessary by other provisions suffered to remain in the statute. If preferences are allowed as to the individual creditors, there is no reason why the same preferences may not be made with reference to the debt as to the individual who holds it. A debtor may choose to protect a particular debt, as for example a security note, in preference to other debts due the same individual. We can see no reason of public policy which will permit the one and exclude the other.

This being the law, it becomes a mere question of intent in tbe construction of the instrument of assignment, as to whether the claim of Woods, Christy & Co. upon the note for 13,130.50 was one of those' provided for in the assignment. The facts show very clearly that it was not. Woods, Christy & Co. were preferred on an indebtedness by two notes amounting to $554.55. These two notes, exactly to this amount, were presented and allowed. But Timmerman, the debtor, had also given his note to Woods (one of the firm), which was endorsed by Christy (another member), and this note was secured by a mortgage on leasehold estate. It appeared that the note was really owned by the firm of Woods, Christy & Co.; that it was given for goods bought by Timmerman of that house, and that the note was merely made to assume the form it did as a matter of convenience. It also appeared that only about half the note had been realized from the mortgaged property; but it further appeared that the mortgaged property was not included in the assignment, and that the property and effects assigned would not pay more than fifty cents on the dollar of the claims named, exclusive of this claim of W., C. & Co.

Under these circumstances it is very plain that Timmer-man had no intention of working any provision for this note of $3,180.50. He does not mention it, but names two other notes and their exact amount. The only question, it seems to me, is, whether a debtor can select particular debts, as he undoubtedly can select particular creditors. The statute does not prevent this, and before the statute there could be no doubt on this question. In fact the language of the 39th section appears to recognize the law as above stated ; it says, “ and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.”

Judge Scott concurring, the judgment is reversed; Judge Richardson not sitting.


text:
    The State, Defendant in Error, v. McLaughlin, Plaintiff in Error.
    1. An application for a new trial on the ground of newly discovered evidence should, as a general rule, he accompanied by the affidavit of the party seeking the new trial; the affidavit of a third person should never be received without an explanation of the reason why the party himself omitted to make it.

      Error to St. Louis Circuit Court.

      J. W. Sharp, for plaintiff in error,
    cited 14 Johns. 294 ; 18 Mo. 321; 22 Conn. 156; 17 Wend. 460; 1 Hill, 94; 5 Gilm. 305 ; 1 Hawk P. C. 33 ; 7 M. & W. 623 ; 1 Hale, 506.
    Mauro, (circuit attorney,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

It , is sufficient to say, without analyzing the instructions that were given, that they presented the law of the case fairly to the jury, .and on the hypothesis that the defendant found the pocket-book the law was stated in conformity to the opinion of this court in the case of the State v. Conway, 18 Mo. 321. The instructions asked by the defendant were properly - refused because the principle contained in the first was covered by one already given, and the second was wrong because it assumed that larceny can only exist where the property stolen is taken from the possession of the owner, and excluded the idea that larceny can be charged in any case where the defendant acquires possession of property by finding it.

The motion for a new trial on the ground of newly discovered evidence was supported by the affidavit of the defendant’s attorney and of the discovered witness, but the defendant personally did not make any statement or affidavit on the subject, and no reason is given for the admission. There are no doubt cases in which the affidavit that accompanies a motion for a new trial on account of newly discovered. evi-donee may properly be made by the attorney or some other person representing the party, but the general rule is that the party himself must make the affidavit, and the circumstances that would authorize an exception to the rule ought to appear. Applications for new trials on the ground of evidence discovered after the trial are entertained with reluctance because of the temptation to parties smarting under defeat to make them, and on account of the facility with which plausible grounds are manufactured. A party may be very willing to take the chances of a new trial, but unwilling or afraid to swear to a statement necessary to procure it; and the loosest practice would be established to permit the oath of another to be substituted for the oath of the party himself. He may make a statement to his attorney which the latter might conscientiously swear he believes to be true, which, in point of fact, is false, and hence the affidavit of a third person should never be received without an explanation of the reason why the party omitted to make it. The courts, therefore, to protect themselves from imposition, require such motions to be supported by the affidavit of the party and the observance of other requisites which are well stated in Berry v. State of Georgia, 10 Ga. 527, as follows: The party must show, 1st, that the evidence has come to his knowledge since the trial; 2d, that it was not owing to the want of due diligence that it did not come sooner; 3d, that it is so material that it would pi’obably produce a different result if the new trial were granted; 4th, that it is not cumulative only ; 5th, that the affidavit of the witness himself should be produced, or its absence accounted for^; and, 6th, that the object of the testimony is not merely to impeach the character or credit of a witness.

In this case the defendant was not absent, and he knew better than any other person when the evidence stated to have been discovered first came to his knowledge, and what diligence he had used before the trial to obtain it. The affidavit of Susan Taylor discloses facts which would probably have produced a different result, and if the motion had contained the necessary requisites, tbe defendant ought to have had a new trial; but to allow it under the circumstances of this case would be at the expense of overthrowing established rules and would introduce a practice dangerous to the administration of justice.

Judge Napton concurring,

the judgment will be affirmed.


text:
    Slowey, Plaintiff in Error, v. McMurray et al., Defendants in Error.
    1. The test by which to determine whether a transaction is a mortgage or a conditional sale is this: if the relation of debtor and creditor remains and a debt still subsists between the parties, it is a mortgage; if, however, there is no debt still subsisting, and the grantor has the privilege o£ refunding it he pleases by a given time and thereby entitling himself to a reconveyance, it is a conditional sale.
    2. If the transaction is a conditional sale, the party seeking a reconveyance to himself must strictly comply with the conditions imposed upon him.

      Error to St. Louis Land Cowrt.

    The petition in substance sets forth that on the 14th day of August, 1855, plaintiff was the owner of a certain lot in the city of St. Louis; that he held the same subject to an encumbrance by deed of trust to secure two notes — one for $616, payable in twelve months — the other for $682, payable in twenty-four months from date ; that when said note for $616 became due he was unable to pay the same ; that McMurray loaned plaintiff $300, plaintiff agreeing to pay interest thereon at the rate of two and a half per cent, per month for the period of six months; that he gave his several promissory notes to said McMurray for the sum thus loaned; that he delivered to said McMurray $316, with tyhich, together with the money loaned as above stated, he, McMurray, paid the said note of $616 when it became due, and took and kept possession thereof; that, at or about the time the notes executed by him in favor of McMurray fell due, he paid to him |200 and took up two of the notes given by him; that, when the note for $682 became due, he, plaintiff, failed to pay the same, and the trustee advertised the lot in controversy for sale and proceeded to sell the same ; that at and before this sale it was agreed between plaintiff and McMurray that plaintiff should remain in possession of the premises, and that McMurray should bid in the same in his own name for the benefit of plaintiff Slowey and j)ay said note of $682, and that, if plaintiff would pay back to said McMurray said sum of $682 and also pay him the sum of $150, the balance remaining due and unpaid of said notes made and delivered as above stated by plaintiff to McMurray, within one year from the date of said sale, said McMurray would reconvey said premises to plaintiff; that said McMurray bid for said premises at the trustee’s sale on the 14th of August, 1855, the sum of $1,005, and received the trustee’s deed therefor ; that in pursuance of said agreement the plaintiff remained in possession of the premises intending in good faith to fulfill and perform said agreement; that on the 11th day of October, 1855, he paid McMurray forty dollars in part discharge of the sum of money which he had agreed to pay to said Mc-Murray ; that on- the 17th day of November, 1855, McMur-ray sold the premises to one Ackerman for $1,100 ; that Ackerman took with notice; that at the date of the trustee’s sale the whole indebtedness of plaintiff amounted to $840.36; that plaintiff on the 14th of August, 1856, said McMurray being absent from his place of business and out of the state, offered to pay to the wife of McMurray $1,000, being more than the sum due McMurray ; that he went to McMurray’s place of business for the purpose of paying what was due and of demanding a deed ; that said lot was worth $2,000 ; that at the trustee’s sale the plaintiff had procured the attendance of other persons and had made arrangements with them to purchase in the property for him, but he had been induced by McMurray to enter into the agreement above set forth.
    The plaintiff prayed the court to annul the deed to Acker-man ; that defendants be required to convey to plaintiffs upon the payment of the debt due to said MeMurray ; that if the court should not order the deed to be cancelled judgment be given against MeMurray for the sum of $328, the overplus (with interest) of said McMurray’s bid after paying the sum of $682, also for $995, what the land and improvements were really worth over and above the sum of $1,005 bid by Me-Murray, &c.
    Evidence was introduced tending to support the allegations of the petition. The case was tried by the court without a jury. At the close of the testimony the court gave the following instruction or declaration of the law: “ On the evidence in this cause the plaintiff can not recover.”

      S. T. & A. D. Glover and Wingate, for plaintiff in error.
    I. McMurray was a mortgagee. (12 Mo. 30 ; 1 Hoff. Ch. 31; 8 Paige, 243 ; 1 How. 118 ; 17 Mo. 61.) The transaction did not cease to be a mortgage simply because Slowey did not pay the debt as by agreement. (6 Gill & Jo. 275 ; 12 How. 151; 8 Paige, 243.) McMurray had no right to sell the land without foreclosure. (3 Dev. Éq. 234 ; 6 Ired. Eq. 39; 1 Paige, 618.) Having done so he must account for the value of the plaintiff’s interest in it. (1 Litt. 84.) The usurious interest paid by Slowey was a lawful credit on on his debt. (3 Dana, 595.)
    I. Z. Smith, for respondent McMurray.
   Scott, Judge,

delivered the opinion of the court.

As the light in which this and contracts similar to that involved in this suit should be regarded is a matter of some importance, and as cases of this kind are not' of unusual occurrence, it may be as well to look a little into this matter.

We do not well see how the transaction between these parties can be regarded as a mortgage or a quasi mortgage, or how the law of mortgages is applicable to it. It may be premised that contracts of this kind are narrowly watched, and courts lean strongly in favor of the right of redemption. Chancellor Kent says, that the distinction between a mortgage and a bill of sale is, that, if the relation of debtor and creditor remains and a debt still subsists, it is a mortgage; but if the debt is extinguished by the agreement of the parties, or the money advanced was not by way of loan, and the grantor has the privilege of refunding if he pleases by a given time and thereby entitling himself to a reconveyance, it is a conditional sale. (4 Kent Comm. 145.) In the case before us we conceive that the relation of debtor and creditor had ceased to exist between the parties. The debt between them was extinguished. After the execution of the deed by the trastee to McMurray there was no evidence of any debt due by Slowey to McMurray. The witness Yogel proves that he delivered all evidences of indebtedness on the part of Slowey to McMurray to Slowey. McMurray then no longer had any remedy against Slowey. No remedy existed, nor was it reserved in terms. If the property had proved insufficient to pay the debt which it is maintained existed between the parties, and McMurray had brought a suit for a foreclosure with a view to obtain the balance of his debt after exhausting the mortgaged premises, how would he have stood in a court, with the denial of Slowey that the transaction was a mortgage backed by an absolute deed, and with no evidence of any indebtedness on the part of Slowey ? Can we suppose that a mortgage was contemplated under such circumstances ? In the case of Brant v. Robertson, 16 Mo. 146, the point of inquiry was, whether Brant held the notes of Robertson by assignment from Ford, and, if he did not, whether he advanced the money to Ford in payment of the notes upon any express undertaking of Robertson to pay the money otherwise than by foi’feiting his interest in the property. Here the notes were given up to Slowey, and it is not claimed in the petition that the payment and reimbursement of the money was to be made with any other view than to obtain a reconveyance. Under our law, which, as it is understood, allows an absolute deed to be converted into a mortgage, without the averment of any accident, fraud, or mistake, what security for titles would there be if such yerbal promises should be maintained to convert absolute deeds into mortgages? (Glover v. Payn, 19 Wend. 518; Robinson v. Cropley, 2 Edwards Ch. 138.)

The case of Russell v. Geyer et al., 4 Mo., did not arise between the debtor or owner of the property sold and the purchaser. That was a bill by a creditor to subject the interest it was alleged his debtor had acquired by reason of a promise to him that he should redeem. The court held that after the expiration of the time agreed upon for the redemption there was no interest in the debtor which could be subjected to an execution. In the case of Flowers v. Sproule, 2 A. K. Marshall, 509, it was held that a purchaser at a sheriff’s sale, promising to return the property to the debtor if the money given is repaid by a certain day, can not be obliged to do so if the money is not punctually paid. It was also held that such a promise was without consideration. In the case of Getman v. Getman, 1 Barb. Ch. 499, real estate was sold under an execution, and the purchaser at the sheriff’s sale sold his bid to two other persons, who advanced the money therefor upon an agreement between them and the wife of the judgment debtor that her children should have six years to refund the purchase money and interest, and have a conveyance of the property ; it was held that this was a mere agreement with the mother to sell the property to her children at any time within the six years for the purchase money and interest, and that, as there was no agreement on the part of the mother or children to take the property and pay for it within that time, it was an agreement without any consideration to support it, and was therefore invalid; and it was held that it was an agreement required to be in writing within the statute of frauds, even if there had been sufficient consideration to support it. We do not regard the case of Heister v. Madeira, 3 Watts & Serg. 384, as conflicting with those above cited. In that case there was a mutual agreement in writing, signed by the parties before the sale, in which, among other things, it was stipulated that the creditor in the execution should buy and hold the land of the debtor in the execution at the sheriff’s sale, and a small sum in comparison with the value of the estate was agreed upon as that at which it should be bid in. There was an unadjusted account between the parties, which was tq be settled within three months, and the balance due was to be paid within that time. The greater portion of the debt due on the execution was paid and a receipt for it was endorsed on the agreement. The money not having been paid within the time, the creditor claimed that the deed was absolute. The court regarded the transaction as a mortgage or deed of trust and permitted the heirs of the debtor in the execution to recover the value in money of the interest of their ancestor in the land, as it had been conveyed away by the creditor. As the sum was fixed by the parties at which the land should be bought in, as that sum was greatly below the value of the land as was shown by the debtor’s payment at the time of the agreement, causing a great disparity between the value of the land and the sum for which it was sought to be held, and as there was a stipulation in the agreement by the debtor to pay the balance, we can see nothing in the case which impairs the force of those stated in this opinion.

There is another class of cases growing out of the conduct of debtors and purchasers at public sales. This is where the purchaser becomes such under such a state of facts as would malee it .a fraud to permit him to hold on to his bargain. As if a purchaser, by means of a promise to reconvey to his debtor, should induce a relaxation of the efforts on his part to prevent a sacrifice of his property and thereby obtain it at an under price, or, if the purchaser, taking advantage of that reluctance invariably manifested by those attending public sales to interfere with any arrangement a debtor makes to save his property, should create an impression that he was buying for the debtor, thereby preventing competition, or by any other improper means obtains the property of a debtor at a sacrifice, such conduct would convert the purchaser into a trustee for the benefit of those who were defrauded by his conduct. Sucli cases go upon the ground of fraud, and courts will give relief without regard to the circumstance whether the agreement was a written or a verbal one, or whether it was supported by a consideration or not. Such are the cases of Rose v. Bates, 12 Mo. 30; Estill v. Miller & Estill, 3 Bibb, 177.

The cases seem to establish these principles : that a promise by one purchasing the property of a debtor at a public sale to reconvey to him must be supported by a sufficient consideration, and, if the subject of the sale is real estate, the promise must be in writing, to take it out of the provisions of the statute of frauds; that such promises, when made under circumstances like those in this case, even when valid and binding, are regarded as conditional sales, and not as mortgages, and the party insisting on their performance must himself comply with the conditions imposed on him.

Making an application of these principles to the case before us, it will be seen that the contract or promise made by Mc-Murray, even if binding in law, constituted the transaction a conditional sale and not a mortgage ; that the party plaintiff not having complied with the terms of the sale, he can not insist on a reconveyance of the lot; that the instruction asked by the plaintiff was tantamount to a request to decide the cause in his favor, and as there was no jury, the court itself hearing the cause, we are not of the opinion that the court erred in refusing the request; we are not of the opinion that the pleadings and evidence in the cause warranted any such instruction. The instruction given was nothing more than the judgment of the court upon the whole case after it had been submitted. No instruction was asked seeking the opinion of the court as to the effect of any fraud in the transaction. The sum at which McMurray resold the lot is a strong circumstance in this case. It is not pretended that the sale was a feigned one.

The question of usury was not raised by the pleadings, and the petition is not framed with a view to obtain any relief under the statute against usury.

As the contract to reconvey was rescinded, the defendant should have restored the forty dollars received under it. There is no error complained of on the score of this omission, but as the plaintiff says that he was to remain in the house, and pay interest on the money, and the defendant says he was to pay twenty-five dollars a month for the privilege of remaining in the house, we may take it that the forty dollars was received as rent. Affirmed;

Judge Richardson not sitting. Judge Napton concurs.


text:
    The State, Respondent, v. Harman, Appellant.
    1. It is no infringement of that provision oE the constitution giving the accused the right in all criminal prosecutions to meet the witnesses against him face to face to receive in evidence against the defendant in a criminal prosecution a deposition taken before the committing magistrate in the presence of the accused — the deponent being dead at the time of trial.

      Appeal from Si. Louis Criminal Court.

      C. C. Carroll, for appellant.
    Mauro, (circuit attorney,) for respondent.
   Napton, Judge,

delivered the opinion of the court.

The question in this case is the same that was determined in the cases of McO’Blenis and Baker, 24 Mo. 402.

The deposition is also objected to as irrelevant and unintelligible. The deposition simply proved that the deponent Melvin (since dead) found a certain watch about the person of the prisoner — a watch which the deponent says was the same watch spoken of by a witness named English on the examination before the recorder. This English was a witness on the trial also and declared the watch he testified about to be the same alluded to by Melvin. We see nothing irrelevant in the deposition, nor any thing unintelligible. The deposition was in point, if for no other purpose, to prove that a watch was found in possession of the prisoner, and the subsequent testimony of English conduces to show the materiality of that fact. Whether the identity of the watch found by the officer with the one spoken of by the witness was fully made out, was a question for the jury. The other judges concurring, the judgment will be affirmed.


text:
    The State, to the use of Tebbe, Respondent, v. Wightman et al., Appellants.
    1. A new trial will not be granted on the ground of surprise where the object in obtaining the same is the introduction of evidence of a character merely cumulative.

      Appeal from St. Louis Court of Common Pleas.

      T. C. Johnson, for appellants.
    I. The court should have given the instructions asked by defendants.
    II. The verdict was against the evidence in the case.
    III. The court should have granted a new trial on the ground of surprise as fully disclosed in the affidavit. (2 E. C. 1855, p. 1285, art. 18, § 3 ; 3 Graham & Wat. on New Trials, 875.)

      Kribben, for respondent.
   Richardson, Judge

delivered the opinion of the court.

The instructions given by the court presented the questions of law in the case fairly to the jury. The plaintiff could stand on his possession until the integrity of his position was assailed, and could rely on the familiar principle of law that the possession of personal property raises the presumption of ownership ; and the allegation in the defendant’s answer that the plaintiff’s possession was fraudulently obtained was insufficient, without evidence, to shift the burden of proof.

Surprise is a ground for granting a new trial, but it is not regarded with favor by the courts. It is the duty of parties, in the preparation of their cases, not only to know what evidence they need, but what their witnesses will most probably prove, and a new trial will not be granted if the surprise is the result of negligence or could have been avoided by reasonable diligence. (3 Graham & Wat. New Trials, 876.) This is not the case of a party’s own witnesses betraying him or the adversary’s witnesses swearing falsely, for it is not averred that the defendants’ own witness deceived him, or that the plaintiff’s witness stated an untruth, but that he omitted from forgetfulness to state a fact which was proven by one witness without contradiction, and which the defendant states he could have proved by another if if he had supposed the plaintiff’s witness had forgotten it; and that he could have secured the attendance of another witness if he had not relied on the memory of the plaintiff’s witness. If he was willing to go to trial in the absence of one of his witnesses, relying on the plaintiff’s witness to corroborate his own, he ought to have taken some pains to have ascertained beforehand that his recollection was refreshed. The fact which the witness forgot was proved by another, and the object in getting the new trial would be to introduce cumulative evidence, which is never allowed. (State v. Stumbo, 26 Mo.; 3 Gra. & Wat. New Trials, 1046.) The judgment will be affirmed,

the other judges concurring.


text:
    Cohen, Respondent, v. Kyler, Appellant. Cohen, Plaintiff in Error, v. Kyler, Defendant in Error.
    1. An action for use and occupation can not be maintained unless the relation of landlord and tenant exists between the parties founded on an agreement express or implied.
    2. A bathing tub and lead water pipes fastened to the walls and floor of a building by nailing are fixtures as between a vendor and vendee.

      Appeal from, and Error to, St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.

      Krum Sf Harding, for Kyler,
    cited Woodf. Land. & Tenant, 432, 607; 3 Mo. 286; 1 Term, 378.

      H. N. Hart, for Cohen.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff brought an action against the defendant for the use and occupation of a dwelling house, and for damages, alleging that the defendant wrongfully took down and carried away fixtures that belonged to the plaintiff, to-wit: “ Sundry lead pipes and plumbing work, bath tub, two sinks and waste pipe.” It appears from the bill of exceptions that the defendant, for the purpose of securing the payment of a debt, executed a deed of trust conveying a lot and dwelling house in the city of St. Louis, and authorized the trustee, in the event of a failure to pay the debt, to sell the property. Default having been made in the payment of the debt, the trustee, pursuant to the terms of the deed, advertised and sold the premises described in the deed on the 12th of November, 1856, and the plaintiff became the purchaser and received a deed. The defendant was in the occupation of the house at the time of the sale, and remained in possession for more than two months against the plaintiff’s consent. “ It was admitted that the defendant never attorned to the plaintiff or agreed to pay rent to him for said premises. The plaintiff also proved that after the said sale of said premises to plaintiff and while defendant occupied the same he unfastened, broke loose, removed and carried away from said premises certain lead water-pipes and a bathing tub, which pipes before and at the time the defendant removed them were fastened to boards, and the boards with the pipes fastened to them were nailed to the walls, and the bathing tub in like manner was fastened to the wall and floor.”

Two questions arose on the trial, first, whether the plaintiff was entitled to recover on the count for use and occupation, and, secondly, whether the articles removed by the defendant were fixtures which belonged to the plaintiff and which the defendant had no right to take away. The court ruled the first point against the plaintiff, to which he excepted, and sued out a writ of error. The other point was decided against the defendant, and he has brought the case into this court by appeal.

It is sometimes difficult to determine whether the facts of a case create a tenancy, but we are relieved from that embarrassment in this instance by the admission in the record that the defendant never recognized the plaintiff as his landlord, and never agreed to pay him rent for the premises. Without this admission, however, the character of the defendant’s possession is so apparent that the relations of the parties to each other do not necessarily suggest a tenancy, and a promise to pay rent would not be implied. The doctrine is well settled that the action for use and occupation can not be maintained unless the relation of landlord and tenant subsists between the parties founded on an agreement express or implied. (Hood v. Mathis, 21 Mo. 308; Bancroft v. Wardwell, 13 John. 488.)

As a general rule an article is a fixture which is annexed or fastened to a freehold, but the term is not always used in the same sense ; for the same thing which would be a fixture and not removable, as between some persons holding a particular x’elation to each other, would not be a fixture as between other persons. Public policy at an early day induced a relaxation of the old rule, for the encouragement of trade and manufactures, and the indulgence has been extended in favor of agricultural pursuits, and at this day a wide latitude is allowed in all cases between landlord and tenant in favor of the claims of the latter to treat as personal chattels articles put up for his own comfort or convenience. Lord Ellen-borough' decided in the leading case of Elner v. Maul, 3 East, 38, that as between heir and executor the rule obtains with the utmost rigor in favor of the inheritance and against tbe right to dis-annex therefrom, and to consider as a personal chattel any thing which has been affixed thereto; and the same rule exists between vendor and vendee; so that unless there is a stipulation to the contrary common fixtures will pass by the deed to the purchaser. (Plumb v. Miller, 6 Cow. 665; Kirman v. Latour, 1 Har. & J. 289; Preston v. Briggs, 16 Verm. 124; 1 Sug. Vend. 37.)

The necessary pipes for conducting water through the apartments of a dwelling house and into a bath-room add greatly to the value, comfort and convenience of the building, and a purchaser who appreciated such things would be sadly disappointed after he had received his deed to find the house stripped of such fixtures. In our opinion the articles taken away by the defendant were fixtures which passed by the deed to the vendee, and the other judges concurring the judgment will be affirmed.


text:
    Picot, Respondent, v. Signiago, Appellant.
    1. A. contracted to build for B. a house; C. and A. agreed to secure B. against all liens, claims and losses. Liens were filed by sub-contractors against said house upon which writs of scire facias were issued against A. and B. These writs were served upon B., the owner, but not upon A. Judgments by default were rendered against B., which he paid. Hdd, in a suit instituted by B. against C. to recover 'damages for the breach of the agreement above referred to, that the records and proceedings in said suits against B. were admissible in his favor to show the amount of the judgments, and the payment of them by him. The judgments were not, however, conclusive upon C.
    2. Judgments in enforcement of liens against A. and B., upon service of process upon both, would be conclusive upon C.

      Error to St. Louis Court of Common Pleas.

    The case has heretofore been before the supreme court.. Por a statement of the facts see the report of the decision of the supreme court, 22 Mo. 587. On the second trial the-plaintiff, Louis G-. Picot, introduced in evidence, against the objection of defendant, the records and proceedings in vari-otis suits instituted in the St. Louis circuit court, by various parties, against said Picot and Porter Push, to enforce liens against tbe building contracted to be built by said Buslt for said Picot. From these it appeared that the plaintiffs in said suits (contractors under Bush) had filed in the clerk’s office of the St. Louis circuit court their demands for the purpose of completing their liens; that writs of scire facias were issued in each case against said Picot, the owner, and said Bush, the contractor; that there was no service of process upon Bush, nor had he any notice of the various proceedings ; that Picot failed to appear, and judgments by default were rendered against him, and orders of execution were made against the market-house. These'judgments Picot paid. The court also admitted in evidence, against the objection of defendant, transcripts of entries in the docket of justice Kitzmiller showing judgments against Porter Bush in various suits instituted to recover demands accruing to the several plaintiffs as sub-contractors or material men under Bush, and which they had filed as liens. Picot voluntarily paid these judgments.

    The defendant offered to prove that at the time of the agreement between Bush and Picot it was agreed and understood that Signiago was only security for Bush; that at the time of the filing of the lien against the market-house and all the subsequent proceedings said Bush was out of the state, and that there was never any service had upon him in any case whatever; that he did not owe any one of the parties to the liens against the market-house any sum whatever when he left the state. The court ruled out this testimony.
    The court, among other instructions, gave the following : If the jury find that before the commencement of this suit the plaintiff paid the judgments read in evidence rendered in the circuit court of St. Louis county and by the justice of the peace, they will find for the plaintiff the amounts so paid and costs paid on said judgments and proceedings, less .the sum plaintiff still retained in his hands.”
    The jury found for plaintiff.

      H. N. Hart, for appellant.
    I. Rush was not a party to the proceedings by scire facias. No judgment could properly be rendered against Picot. (Wibbing v. Powers, 25 Mo. 599.) The judgments against Picot were not valid liens. Signiago was not a party to the proceedings against Bush and Picot. He ought not to be made to pay Picot what neither he nor Bush had an opportunity to contest.
    II. The court below ought to have excluded the transcripts of the justice. They were general judgments and not judgments such as are required under the lien act. (R. C. 1845, p. 735; Sess. Acts. 1843, p. 84.)
    III. The court erred in excluding the evidence offered by defendant.

      L. G. Picot, for respondent.
   Napton, Judge,

delivered the opinion of the court.

We do not perceive upon what ground the judgments in the circuit court against Picot by default were held conclusive upon Signiago. His principal, Bush, was not a party to the proceedings. The record shows that he had no notice. Picot had unquestionably the right to pay the sub-contractors without suit, if he was satisfied of the justice of their claims, and if he was willing to assume the responsibility of establishing their validity in the event of a question between him and the principal contractor. In what respect does he occupy a different position by letting judgments go against him by default, Bush not being a party ? These records were evidence to show the facts established by them, the amount of the judgments, and the payment of them by Picot. They were not however conclusive on the contractor or his security, because they were not parties to them. The evidence offered by the defence, to show that these claims had been paid or were not justly due, should have been received.

In relation to the judgments before Justice Kitzmiller, the case is different. The records show a service upon. Bush, and this he (nor his security Signiago) can not contradict, at least in the collateral way. When filed in the circuit court according to the provisions of the local statute (Acts of 1843, § 7,) they became liens upon the property; and as Picot, the owner, could not dispute their validity, they are conclusive upon Signiago now. So far as these latter judgments are concerned we see no error in the action of the court.

Judge Scott concurring, the judgment is reversed and the cause remanded. Judge Richardson not sitting.