Stephenson v. Kilpatrick

Decision Date17 December 1901
Citation65 S.W. 773,166 Mo. 262
PartiesSTEPHENSON v. KILPATRICK et al.
CourtMissouri Supreme Court

Appeal from circuit court, Howell county; W. N. Evans, Judge.

Action for leave to redeem a mortgage by W. E. Stephenson against T. B. Kilpatrick and others. Decree for defendants, and plaintiff appeals. Reversed.

W. B. Watts and M. E. Morrow, for appellant. Orchard & Saye, for respondents.

SHERWOOD, P. J.

Stephenson owned a small farm in Howell county, the tract of land on which his farm was located containing about 120 acres. Stephenson was indebted to one Mattie McCowan, and such indebtedness was evidenced by note secured by deed of trust. When the note fell due, Stephenson made default, and a sale of the land occurred, at which one Joseph R. Carr became the purchaser, and, obtaining a deed from the trustee, brought ejectment against Stephenson, returnable to the October term, 1895. To this action Stephenson interposed an equitable defense, which, on hearing had and evidence adduced, resulted in the following decree being entered at said term on the 8th day of November: "The court finds that the trustee's sale was at an unusual hour, and that the amount of the sale was inadequate, and that Joe Carr was not an innocent purchaser within the meaning of the law, but that said Carr, having paid a valuable consideration for said lands, should be and is subrogated to all the rights of Mattie McCowan and the note and mortgage in question; and there is now due on the same $570; and it is therefore decreed that if defendant shall, on or before the 7th day of December, 1895, pay said Carr the sum of $570, the title to said land be vested in him, and, if he fail to pay the said sum within that date, then he shall be devested of all right and title to said land, and that plaintiff have possession thereof, with $5 per month from this date, and that restitution issue therefor. G. A. Chapman to be appointed to act as agent for both parties to adjust matters and costs." The petition alleged that Carr refused to receive the money when offered him, and the object sought by the petition was to set aside the execution on which Carr obtained possession of the property, and which issued on the 9th of December, 1895, and under which he was put into possession on the next day thereafter; and also to set aside and cancel a deed made by Carr to Kilpatrick on January 30, 1897, and two deeds to Hall, made on June 23, 1897, by Kilpatrick; that plaintiff be permitted to redeem, etc.; and that defendants be devested of all title to said land, and the same be vested in plaintiff, etc. The petition also charged that Carr, in fraud of plaintiff's rights, refused to receive the money, and caused said execution to issue, and made said deed to Kilpatrick, and that the latter pursued the same course in making the deeds to Hall; and that both Kilpatrick and Hall made and received said deeds with full knowledge and notice of plaintiff's rights in the premises, and were aiding and assisting Carr to carry out his fraudulent scheme to deprive plaintiff of his land. The evidence, in brief, showed that plaintiff had borrowed the money from Canterbury; that the latter had taken and accepted the security offered by plaintiff, and had laid it up in the bank, where Canterbury had the money on deposit; and that on Saturday, the 7th day of December, Canterbury went to Carr, and offered to pay him the money, and Carr said "he wouldn't accept the money from him; he would have to see his attorney." On the previous day — Friday, the 6th of December — plaintiff went to Carr, and talked to him about paying him the money, when he told plaintiff that "he didn't have to take money, and he would not take it." To other witnesses Carr made similar remarks about his intended nonacceptance of the money. Nothing is better settled than that the actual production of the money may be waived by him to whom it is due refusing to accept the sum thus due, and such refusal makes the proffer to pay as good as though the money were counted down. Berthold v. Reyburn, 37 Mo. 586; Whelan v. Reilly, 61 Mo., loc. cit. 568, and cases cited; Walsh v. Association, 101 Mo. 534. As to defendant Hall, it is in evidence that Hull, who took him to look at the land (which the former subsequently bought), told him "that Stephenson used to own the land, and that there was some dispute about the title." Evidence of this sort does not appear as to Kilpatrick, but we must not forget to...

To continue reading

Request your trial
45 cases
  • Kleinschmidt v. Bell, 38849.
    • United States
    • Missouri Supreme Court
    • 9 Octubre 1944
    ... ... Conover v. Berndine, 69 Mo. 125; Dickerson v. Chrisman, 28 Mo. 139; State v. Wymore, 345 Mo. 177; Stephenson v. Kilpatrick, 166 Mo. 262; Ashbrook v. Date, 27 Mo. App. 649; Gordon v. Ritenour, 87 Mo. 54. (10) Further, appellant's cross-examination brought out ... ...
  • Macklin v. Fogel Const. Co.
    • United States
    • Missouri Supreme Court
    • 4 Septiembre 1930
    ... ... plaintiff to return money paid under release. This was ... sufficient, and actual production of cash was therefore ... waived. Stephenson v. Kilpatrick, 166 Mo. 262; ... Cunningham v. Railroad Co., 167 Mo.App. 285. (4) The ... defendant is estopped from asserting no case was made ... ...
  • Lunsford v. Davis
    • United States
    • Missouri Supreme Court
    • 21 Septiembre 1923
    ... ... Co., 5 Mo.App. 245; Holdsworth v. Shannon, ... 113 Mo. 508; Stoffel v. Schroeder, 62 Mo. 147; ... Vail v. Jacobs, 62 Mo. 130; Stephenson v ... Kilpatrick, 166 Mo. 262; Middleton v. Bacon, ... 262 Mo. 398; Daggett Hardware Co. v. Brownlee, 186 ... Mo. 621. (2) There was a fixed ... ...
  • Sutter v. Easterly
    • United States
    • Missouri Supreme Court
    • 4 Septiembre 1945
    ... ... failure creates an unfavorable presumption against them ... Mabry v. McClurg, 74 Mo. 575; Leeper v ... Bates, 85 Mo. 224; Stephenson v. Kilpatrick, ... 166 Mo. 262, 65 S.W. 773; Marcus v. Hudgins, 168 Md ... 79, 176 A. 271; Detroit Trust Co. v. Hockett, 278 ... Mich. 124, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT