Carr v. Holbrook

• Decision Date: 30 November 1822
• Parties: CARR v. HOLBROOK AND OTHERS.
• Court: Missouri Supreme Court

1 Mo. 240

CARR

v.HOLBROOK AND OTHERS.

Supreme Court of Missouri.

November Term, 1822.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS.

JONES, J.

This was a petition brought by the plaintiff in error, being also plaintiff below, against the defendants, praying that certain mortgaged premises may be sold to pay the amount of part of the moneys thereby secured; to which there was a general demurrer and joinder. The court sustained the demurrer and gave judgment for the defendant; to reverse which, this writ of error was brought. The petition states, that on the 30th May, 1820, in consideration of $233, then paid, and also of the further sum of 4,000, secured to be paid as thereinafter mentioned, did, by deed, sell and convey unto John Holbrook and his heirs, the several lots or parcels of land therein described, (the premises mortgaged being part of them). But the said deed was made on the express conditions and limitations, that, whereas, the said John Holbrook and Stephen Gay, on the 7th day of September, then last, for and in consideration of the purchase of the said several lots, by the said deed sold, and those the same day of the date of the aforesaid deed, conveyed to Lucinda Gay, widow and devisee of the said Stephen Gay, as aforesaid, did execute and deliver to him, the said Carr, their four several promissory notes, under their hands and seals, for the payment of $1,000 each, payable in two, three, four and five years after date, with interest from the date; also, one other note of the same date, payable in twelve months after date, whereof $566 02 had been paid, and for the balance, being $433 98, they, the said John and Lucinda, had given their own joint note, payable at the Bank of Missouri, on the seventh September, then next, to the said John; and had taken up and cancelled the said note of them, the said John and Stephen. It was therefore conditioned in said deed, that if the aforesaid four several notes of $1,000 each, with the interest thereon, which was payable annually, should be punctually paid, as also the aforesaid negotiable note of the said John and Lucinda, according to their respective tenors and dates, then the said deed to the said John should be absolute, in full force and without any condition, limitation, or restriction whatsoever; otherwise it was to be null and void, and of none effect. That, on the 31st May, 1821, a conveyance in fee of the lot therein first above mentioned, was made by the said John to Lifee, alias Lifee Holbrook; and that, on the 27th July, in the same year, a conveyance in fee, by way of mortgage of the lot (therein) last above mentioned, as conveyed by the said William C. to the said John, was made by the said John to Nathan Shaw, to secure the payment of the sum of $300 to said Shaw; and that, on the 29th of the last mentioned month and year, the (therein) last above mentioned lot was conveyed by said John to Nancy Holbrook, in fee. The plaintiff then avers, that the first note above mentioned, under the seal of the said John and Stephen, for $1,000, with interest from date, dated on 7th September, 1819, fell due the 7th September (then) last, and that the last...