Anthony v. Rogers
| Decision Date | 31 January 1853 |
| Parties | ANTHONY, Appellant, v. ROGERS et al., Respondents. |
| Court | Missouri Supreme Court |
1. Where A. executes a bond to convey certain land to B., on the payment of a specified sum, after a tender of the amount, B. has such an interest in the land as is subject to sale under execution.
Appeal from Buchanan Circuit Court.
Vories & Gardenhire, for appellant. So far as the rights of the appellant are concerned, it is immaterial whether the absolute deed and bond constitute a conditional sale or a mortgage. In either case, Kennedy had such an interest as could be sold under execution. If it be a conditional sale, a tender, at the time specified in the bond, was substantially admitted in the answer, and was proved by two witnesses. A tender in a regular manner is not necessary, if the other party previously refuses to accept it, or by his conduct dispenses with it. Blight's Executors v. Ashley, Peters' C. C. R. 15. 2 Wash. C. C. R. 142. 8 J. R. 474.
But it is insisted that the transaction was a mortgage. Cruise's Dig. title Mortgage, chap. 1, secs. 11, 12. 7 Cranch, 218. 1 Vesey Sr. 160. 7 Pick. 159. 3 Watts, 188. 6 ib. 405, 126. 15 J. R. 205. 4 Pick. 349. 4 J. Ch. R. 167. The rents and profits of the land, while the mortgagee is in possession, are to be applied in reduction of the principal and interest of the mortgage debt. 9 Mo. Rep. 545. 2 Summers' C. C. R. 401. While the mortgagee is to be allowed for all repairs necessary for the protection and preservation of the property, he is not allowed for general improvements, made without the consent of the mortgagor, when they enhance the value of the estate; and especially, if they are such as may embarrass the mortgagor's right or ability to redeem. Calkins v. Calkins, 3 Barbour's Rep. 313.
Loan, for respondents. The deed and title bond taken together do not constitute a mortgage. Glover v. Payne, 19 Wend. 518. Parol evidence is not admissible to vary the effect of these instruments. The only exception to this rule is, where the defeasance has been omitted or destroyed by fraud, surprise or mistake. 4 Kent, 142, and cases there cited. If parol evidence is admissible, yet the facts, as shown by the bill, answers, and proof, in this case, do not show the essential requisites of a mortgage. Desloge & Rozier v. Ranger, 7 Mo. Rep. 329. Williams v. Rorer, ib. 566-7-9. Harrison v. Lee, 1 Littell's Rep. 191. Skinner v. Miller, 5 ib. 86. Edrington v. Harper, 3 J. J. Marsh. 353. Kenny v. Marsh, 2 A. K. Marsh. 46. Flowers v. Sproule, ib. 54. Prince v. Bearden, 1 ib. 169. Gray v. Prather, 2 Bibb, 223. Peterson v. Clark, 15 J. R. 205.
Anthony filed his bill in chancery for the purpose of obtaining the title to a lot in the town of St. Joseph, in Buchanan county. The case appears to be this. One Kennedy, the owner of the lot, on the 31st January, 1845, obtained from Rogers and McCauley, the sum of $541.74, and on that day, executed an absolute conveyance of the property to them. On the same day, they executed a title bond binding themselves to convey the property to Kennedy, if he would pay to them the sum of $591.74 on or before the first day of February, 1846. By the answer, as well as by the evidence given in the cause, it would appear that the title bond was drawn and executed after the conveyance had been executed and acknowledged. On the first day of February, 1846, Kennedy caused the money mentioned in the title bond to be tendered to Rogers, and a deed was demanded of Rogers conveying the title of Rogers and McCauley. McCauley had before that time left the state. According to the testimony of one witness, Rogers admitted the tender to be complete; according to the testimony of another, the money was offered, although not counted, because Rogers was unwell, and stated that he was without legal advice as to what he should do. The answer of Rogers to the seventh interrogatory in the bill, admits that the person acting as the agents of Kennedy brought money to his house on the first of February, 1846, and offered it upon condition that a deed was made from Rogers and McCauley. The answer and the testimony make out a sufficient tender. In May, 1846, after the tender was made, a judgment was recovered against Kennedy in the Buchanan Circuit Court for a fine, and upon execution issued upon that judgment, Kennedy's title to the property was sold, and the plaintiff became the purchaser. Kennedy had continued in possession after his conveyance to Rogers and McCauley, although Rogers and McCauley had commenced an ejectment in July, 1845, against the tenants, to recover the possession.
1. The principal question in this case is, whether Kennedy had any such interest in the property, at the time of complainant's purchase, as could be sold...
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