— The only question in this case is, whether the decree of the circuit court was authorized by the facts as found by the judge. It is obvious that the court found the facts to be substantially as stated iu the petition, and as such a conclusion is supported by the testimony of five witnesses, and scarcely contradicted by the defendants, we may assume them to have been correctly stated.
It appears, then, that the children of Robert C. Barnum were the owners of a farm in Montgomery county subject to a mortgage of $5,000 in favor of Mrs. Merry, and by authority of the circuit court of said county, this land was sold to a son and son-in-law of the defendants for $11,200. The terms of the sale were that the purchasers should pay down $600 in cash, should take up the Merry note for $5,000, should give their note for $3,000, indorsed by the defendants, Bobb and his wife, and another note for $2,600 secured by a deed of trust on the land. The $600 *624cash payment was made, the note fov $3,000, indorsed by defendants, was also madé and paid at maturity, and the note for $2,600 was made, but the $5,000 note to Mrs. Merry was allowed to go unpaid, both principal and interest, and so, also, the note for $2,600.
About a year after this transaction, in June, 1869, Mrs. Merry called upon the plaintiff, or his father, Theron Barnum, to pay $2,500 on the note to her, and said Barnum paid it by discounting the $3,000 note which belonged to the minors. In the summer of the same year (1869) the defendants wished to get possession of the Merry note and deed of trust, and according to the testimony of Mr. Musser, who was acting at that time as plaintiff's attorney, the following agreement was concluded: “The agreement was, that defendants, Bobb, were to pay $5,000 in money and accrued interest and indorse the $2,600 note, and hold the $5,000 deed of trust secondary to the $2,600 note, otherwise that it should not be negotiated or foreclosed until the $2,600 note was paid or satisfaction secured. Witness delivered the $2,600 note to Charles Bobb, and he said he would take it to his wife and have her indorse it. Upon Bobb’s giving $5,000, I gave him the $5,000 note, with the paper or memorandum embodying the substance of the agreement. Bobb returned the $2,600 note, saying his wife refused to indorse it. The defendants, Bobb, wanted to purchase the $5,000 note and not pay it, in order to save themselves for money advanced for George L. Bobb and McGinness. I suppose Robert O. Barnum owed $5,000 and interest on this note. Theron Barnum .held the note and, I suppose, owned it. Robert O. Barnum was willing to let defendants have the $5,000 note if they would indorse the $2,600 note."
This statement of Mr. Musser is corroborated by Mr. Ellerbe, who was present in the office when the agreement was made. The same statement, in substance, is made by Theron Barnum and Freeman Barnum and by the plaintiff. These statements were denied by the defendants. Subse*625•quently the defendant, not being able to procure a sale of the land under the deed of trust by the original trustee, had one White appointed trustee, and a sale made at which Mrs. Bobb became the purchaser. It was for the purpose of preventing White from making a deed and declaring this sale void that this suit was instituted. The court rendered a decree for the plaintiff', adjudging the sale made by defendant, White, to be void, enjoining him from making or delivering a deed to defendant, Martha E. Bobb, restraining defendant, Bobb, from advertising or selling under said deed of trust, and declaring the deed of trust securing the $2,600 note to be a first lien on said property.
We do not very well see how the circuit court could have reached any other conclusion in regard to the facts than the one adopted. The fact that the terms of the transfer of the $5,000 note and deed of trust were reduced to writing by Mr. Musser, and the paper appended by him to the $5,000 note and deed of trust, and handed over to defendants, seems conclusive that Mr. Musser’s recollection of the details could not have been much at fault, or the defendant would have produced this memorandum. They had it “in their power to show exactly what the agreement, or proposed agreement of the plaintiff’ was. It may be that Mrs. Bobb, as she states, was under the impression that she never assented to an indorsement of the $2,600 note. It seems, however, reasonably certain that the plaintiff did so understand it, and never consented to part with the note and deed of trust for $5,000 unless upon having the $2,600 note secured or paid. -It will he seen then that the object of the petition is not to enforce the specific performance of a contract, either against Mrs. Bobb or any one else. It is not material that Mrs. Bobb misunderstood the proposition of the plaintiff’, or his agent, if in fact, as she states in her testimony, she did not agree to indorse the $2,600 note. It is certain that the possession •of the $5,000 note and deed of trust was obtained by permitting the plaintiff’s agent to feel assured that such prom*626ises were made and would be complied with. The only-object of the petition and the decree which was made in conformity to its prayer, was to prevent the defendants from making use of the oldest lien upon the land, so as to destroy or Very much impair the value of the note for $2,600 for a portion of the purchase money, contrary to what must be conceded as the intention of the plaintiff, and the only ground upon which he consented to the transfer.
The evidence on the side of plaintiff is overwhelming, and is. supported by witnesses who had no motives to misrepresent. It is objected to the decree that it is not proved that Mrs. Bobb had a separate estate, but the whole history of the transaction can only be accounted for on the hypothesis that she had, and whether she had a separate estate or not, her coverture will not be allowed to operate as a sword instead of a shield, and enable her to perpetrate what, at all events and in any view of the testimony, operated as a fraud upon the plaintiff. Pratt v. Eaton, 65 Mo. 157. The judgment of the circuit court will be affirmed,
all concur.Aeeirmed.