Schmalhorst v. Peebles

Biggs, J. The defendant is sued as the assignor of six nonnegotiable notes. The facts as established by the plaintiff’s evidence are these: On the thirty-first day of March, 1891, the plaintiff bargained and sold to defendant a lot in the city of Springfield. In part payment thereof the defendant assigned the notes sued on in blank and delivered them to plaintiff. The title to the lot was vested in plaintiff’s wife. The plaintiff claimed that the lot was bought with his money. The notes were delivered to him. Subsequently the wife died. After her death the plaintiff filled up the indorsements on the notes in his own name and then instituted the present action thereon. The plaintiff also introduced evidence which tended to prove that he had promptly instituted suits against the makers of the notes, had obtained judgments against them, and had been unable to collect any portion of the debts from them. Under this proof the circuit court instructed the jury to return a verdict for the defendant. This was done and judgment entered on the verdict. The plaintiff has appealed. [223] s'tme0in1wIifer!th procee°ds7ife to Pqufredby“&e Mparate°cstate.: [222] Did the plaintiff’s evidence tend to prove his alleged ownership of the notes'? We think it did not. [223] It is admitted that the title of the lot was vested in plaintiff’s wife, and that the notes represent a portion of the purchase money arising from its sale to defendant. The fact (if it is a fact) that the plaintiff paid for the lot, in nowise helps out his case. There could be no resulting trust in his favor as against his wife, for the reason that the transaction must be regarded prima facie as an advancement to her. Gilliland v. Gilliland, 96 Mo. 522. Neither does it avail the plaintiff anything, that the notes were delivered to him, and not to his wife. The notes were acquired by “the means” of the wife, and under section.6869 of “The Married Woman’s Act,” they were her separate property. Rodgers v. Bank, 69 Mo. 560. By the terms of the statute the plaintiff could only become the owner of the notes by the written assent of his wife. There is no pretense that such assent was given. Our conclusion makes the discussion of other questions unnecessary. The judgment of the circuit court will therefore be affirmed. Judge Bond concurs; Judge Bland is absent.