Fisher v. Stevens

• Decision Date: 01 March 1898
• Citation: 44 S.W. 769,143 Mo. 181
• Parties: FISHER v. STEVENS.
• Court: Missouri Supreme Court

44 S.W. 769

143 Mo. 181

FISHER v. STEVENS.

Supreme Court of Missouri, Division No. 2.

March 1, 1898.

EJECTMENT — PLEADING — INCONSISTENT DEFENSES — EXTENSION OF NOTE — PREMATURE FORECLOSURE — RIGHTS OF PURCHASER.

1. In ejectment, after foreclosure by the purchaser at the foreclosure sale, a defense setting up that there had been a valid extension of the time of payment of the note which had not yet expired, of which plaintiff had notice before the sale, is not inconsistent with a general denial contained in the same answer.

2. An agreement supported by a valuable consideration, made after a note becomes due, for its extension to a definite time, and otherwise valid, though verbal, may be interposed as a bar to an action on the note or mortgage brought within that time.

3. Where there had been a valid extension of a note secured by mortgage, and the mortgage was foreclosed within the time of such extension, a purchaser at mortgage sale, having knowledge of the extension, acquires no title.

Appeal from circuit court, Callaway county; John A. Hockaday, Judge.

Action by Thomas W. Fisher against A. S. Stevens. Judgment for plaintiff. Defendant appeals. Reversed.

A. Finley and R. B. T. Oliver, for appellant. David H. Harris, for respondent.

BURGESS, J.

This is ejectment for the recovery of the possession of 219 14/100 acres of land in Callaway county, Mo. The petition was in the usual form. The ouster was laid February 22, 1895. On April 20, 1895, plaintiff filed petition for injunction, upon which a temporary restraining order was duly issued by the circuit court of said county on the 27th day of May, 1895, enjoining and restraining defendant and his servants from entering upon, and plowing or cultivating, in any manner whatsoever, any of the grass, meadow, or pasture lands on the premises in question. On May 24, 1895, defendant filed an amended answer, in which he denied all allegations in plaintiff's petition. The answer then proceeds as follows: "(2) Defendant admits that he was at the time of the filing of this suit in the possession of, and is now occupying, the lands and premises described in plaintiff's petition. (3) Defendant, for another and further answer to plaintiff's petition, states that on the 20th day of October, 1881, he was the owner in fee and in possession of the following described lands, lying and being in the county of Callaway and state of Missouri, to wit: (4) W. ½ of lots 1 and 2 of the northwest quarter of sec. 4; also the northeast quarter, and the north half of the southeast quarter, and the southeast quarter of the northeast quarter, and the north half of the southeast quarter of the southeast quarter of the northwest quarter, of sec. 5, — all in township 49 and range 8. (5) That on the last-named date defendant made, executed, and delivered his certain negotiable promissory note for $3,500, payable to the order of James Rickenbaugh, due and payable one year after date, and bearing interest from date at the rate of 8 per cent., compound; that, to secure the payment of said promissory note, defendant and his wife, Harriet Stevens, executed and delivered their certain deed of trust of even date with said note, upon all the real estate above described, to R. A. Crews, as trustee, to secure said note. Defendant further states that payments were made on said promissory note by him, and said note was kept alive and continued a subsisting obligation, and on the 24th day of September, 1894, there was due on said note, including principal and interest, about the sum of $5,800; that on the last-named date defendant was insolvent, and was indebted to John Swon, as security on a certain note held by said Swon, and payable to his order, for the sum of $346.66, and that on the ____ day of August, 1894, one James Dillard obtained a judgment against this defendant in the circuit court of this [Callaway] county for the sum of $398.10, and that said judgment was unpaid on said date. Defendant avers that said Swon came to him, and represented to and told this defendant that he (Swon) would take up the Rickenbaugh note, and deed of trust securing same, and pay off the Dillard judgment named above, if the defendant would execute and deliver to said Swon his promissory note for $756.21 (being the amount of the Dillard judgment and costs, and the sum of defendant's indebtedness to said Swon, as mentioned above), and secure the payment of said note for $756.21 by a second deed of trust from defendant and his wife, Harriet Stevens, upon all the lands and real estate heretofore mentioned; that he (John Swon) would extend the time for the payment of the note for $756.21, and the deed of trust to secure the same, for a period of five years from the 24th day of September, 1894. Defendant states that, believing and relying on the statements and representations of the said John Swon, and having perfect faith and confidence in the honor, honesty, and integrity of said Swon, and believing that if said Swon bought said promissory note from said Rickenbaugh, and the Dillard judgment, and if the indebtedness from defendant to the said Swon was secured by a second deed of trust from defendant and his wife upon all the above-described lands, the time for paying off said Rickenbaugh promissory note, and the note for $756.21, so given, would be extended for a period of five years from the said 24th day of September, 1894, and that said lands would not be sold under said deeds of trust, or either of them, for a period of five years from the 24th day of September, 1894; that defendant, relying on said statements and promises made by the said Swon, and the fact that said Swon did take up the Rickenbaugh note and did pay off the Dillard judgment, was induced by said statements, acts, and representations of said John Swon to execute and deliver his promissory note for $756.21 on the 24th day of September, 1894 due five years after date, and payable to the said John Swon or his order, and did on the same day secure said note by executing and delivering a second deed of trust from defendant and his wife, Harriet Stevens, upon all the lands as described as aforesaid. (6) Defendant further avers that said John Swon, after having the indebtedness from defendant to himself well secured as aforesaid, in utter disregard of his promises and representations to defendant, and in fraud of defendant's rights, did cause said lands of defendant to be advertised and sold on the 20th day of February, 1895, under the deed of trust made to secure the said Rickenbaugh note; that at said sale plaintiff bought the lands described in his petition, and received the trustee's deed for the same. Defendant further states that just prior to the sale, and while said lands were advertised by the trustee, he informed this plaintiff of the contract and agreement aforesaid made by and between himself and the said John Swon, as set out above; that he further informed said plaintiff that he did and would object to the sale of said lands, for the reason that such sale would be a violation of the...