45 S.W. 270 (Mo. 1898), Swon v. Stevens

Citation:45 S.W. 270, 143 Mo. 384
Opinion Judge:Gantt, P. J.
Party Name:Swon v. Stevens, Appellant
Attorney:A. Finley and R. B. T. Oliver for appellant. N. D. Thurmond for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:March 29, 1898
Court:Supreme Court of Missouri
 
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Page 270

45 S.W. 270 (Mo. 1898)

143 Mo. 384

Swon

v.

Stevens, Appellant

Supreme Court of Missouri, Second Division

March 29, 1898

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded (with directions).

A. Finley and R. B. T. Oliver for appellant.

(1) The contract between appellant and respondent to extend the time for the payment of certain debts and for the foreclosing of deeds of trust securing the same for a period of five years, was for a valid consideration, legal and binding on the parties thereto. 2 Jones on Mort. [5 Ed.], secs. 1190, 1191; Ins. Co. v. Bonnell, 35 Ohio St. 365; Thompkins v. Thompkins, 21 N.J.Eq. 338; West v. Brison, 99 Mo. 684; Semple v. Atkinson, 64 Mo. 504. (2) Said contract does not come within the purview of the statutes of frauds and perjuries. Its terms do not affect real estate or any interest in real estate in any way. It only affects the debts by extending the time for payment and extending the time for the foreclosing of the deeds of trust securing the same. Turner v. Johnson, 95 Mo. 431; Brown v. Bowen, 90 Mo. 184; O'Fallon v. Clopton, 89 Mo. 284; Gillispie v. Stone, 70 Mo. 505. (3) But if within the statutes of frauds and perjuries it was taken out by part performance; and by a memorandum of the contract, in writing, signed by the party to be charged. Simons v. Headlee, 94 Mo. 482; Christensen v. Wooley, 41 Mo.App. 53. (4) At the time of the sale of the lands by the trustee, no part of the debts under the contract was due, and there was no default in any of the conditions of the deeds of trust securing these debts, and for that reason the sale was void, the trustee having no power or authority to sell. Peas v. Iron Co., 49 Mo. 124; 2 Jones on Mort. [5 Ed.], sec. 1175; Koehring v. Muemminghoff, 61 Mo. 403; Baldridge v. Dawson, 39 Mo.App. 527; Franders v. Barstow, 18 Me. 357; Baxter v. Spenser, 33 Mich. 325. (5) The trustee having no power or authority to sell the lands at the time he did, his deed or deeds to purchasers conveyed no title. Long v. Long, 79 Mo. 644; Eitelgeorge v. Bldg. Ass'n, 69 Mo. 52; 2 Jones on Mort. [5 Ed.], sec. 1191. (6) Appellant's presence at the sale and directing how the land should be sold does not estop him when he objected to the sale of the land and so announced at the time publicly. (7) This is an equity case and this court will try it "de novo." Sims v. Lenhardt, 127 Mo. 271; Blount v. Spratt, 113 Mo. 48.

N. D. Thurmond for respondent.

(1) The cause of action in this court is one at law. The defendant in his answer interposes, first, a general denial, and secondly, he sets up an equitable defense in the nature of a confession and avoidance. The two defenses are inconsistent and contradictory. Such a course of procedure is not allowed by the rules governing pleadings under the practice act. Darrett v. Donnelly, 38 Mo. 492, and cases cited. (2) This court will not review the finding of the lower court where no declarations of law are asked or given and there is nothing to show on what theory the court below acted in coming to its conclusions. Parkinson v. Caplinger, 65 Mo. 290; Harrison v. Bartlett, 51 Mo. 170; Wilson v. Railroad, 46 Mo. 36. (3) Judgments will not be disturbed simply because it appears to be against the weight of the evidence. Nor will the Supreme Court pass upon the weight of the evidence, nor determine its credibility where it is conflicting, but will defer to the conclusions of the trial court having the witnesses before it. Rea v. Ferguson, 72 Mo. 225; Methudy v. Ross, 81 Mo. 481; Anderson v. Griffith, 86 Mo. 549. (4) In a case like this it was incumbent on the defendant to prove to the satisfaction of the court, first, the existence of the agreement asserted in the answer; second, that through the contrivance or with the consent of the plaintiff such an agreement deterred others from bidding; third, the actual market value of the land at the date of the sale and that the market value was greater than the price at which the land was sold. Gillispie v. Stone, 70 Mo. 505. (5) An agreement, after the maturity of a note, to extend the time of payment, is no bar to a foreclosure, before the expiration of the period of extension of the mortgage securing the note, the only remedy for violation of the agreement being an action for damages. Ayers v. Hamilton, 30 N.E. 895; Vogel v. Harris, 83 Ind. 494; Williams v. Scott, 83 Ind. 25; Irons v. Woodfill, 32 Ind. 40. (6) Under our statutes all contracts which directly or indirectly limit or tend to limit the time in which any suit or action may be instituted shall be null and void. R. S. 1889, sec. 2394. (7) The equitable defense set up in the answer and the remedy prayed for is an action concerning land, and can not be maintained unless the contract upon which the action is based was in writing and signed by the party to be charged therewith. R. S. 1889, sec. 5186.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

[143 Mo. 388] Gantt, P. J.

This is an action of ejectment for the northwest quarter of the northeast quarter; ten acres, the north part of the southwest quarter of the northeast quarter (said tract extending across said southwest fourth northeast quarter); and thirty acres, the south part of the northwest quarter of the southeast quarter (north line parallel with south line of said northwest quarter of the southeast quarter), all in section 5, township 49, range 8, Callaway county. Ouster was laid March 2, 1895. The answer was as follows:

"Now on this day comes the defendant in the above entitled cause and for answer to plaintiff's petition filed herein denies each and...

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