Chrisman v. Hodges

• Citation: 75 Mo. 413
• Parties: CHRISMAN v. HODGES et al., Appellants.
• Decision Date: 30 April 1882
• Court: Missouri Supreme Court

75 Mo. 413

CHRISMAN

v.HODGES et al., Appellants.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

Job South, Simrall & Sandusky for appellants, cited Huth v. Carondelet Marine R'y Co., 56 Mo. 203; Olney v. Eaton, 66 Mo. 563.

Jas. E. Lincoln for respondent, cited Koehring v. Muemminghoff, 61 Mo. 407; Mechanics' Bank v. Valley Packing Co., 70 Mo. 643; Griswold v. Seligman, 72 Mo. 111; Pearson v. Carson, 69 Mo. 550; Henshaw v. Dutton, 59 Mo. 139.

HOUGH, J.

This was a suit to recover a balance due on the following instrument:

LIBERTY, Mo., February 6th, 1878.

On the 1st day of March next, we, or either of us, promise to pay Virginia Swinney, or order, for value received, $4,538, with ten per cent interest from due, compounded if not paid annually. This note is given for the balance of the purchase money due on a farm this day purchased by us from Virginia Swinney; and it is hereby agreed that this note shall not bear any interest if the said contract fails to be completed by the fault of said Virginia Swinney at the time mentioned in the title bond this day to be delivered by her.

Z. T. HODGES,

H. H. HODGES.

FRANK HODGES.

On July 24th, 1878, this instrument was assigned to the plaintiff. It appears from the record that on the 18th day of December, 1877, the defendants made a contract with one William Swinney, for the purchase of the land referred to in the instrument sued on, which contained the following stipulation:

“When said Swinney makes said parties a good and sufficient deed to said land, the said parties of the second part agree to pay of said $5,500 the sum of $1,000; and when said Swinney gives possession of said premises to said parties of the second part, they agree to pay said Swinney the balance of said sum, to-wit: the sum of $4,500. As a part of this last payment said Swinney agrees to take a note, secured by deed of trust on John Hodges' land, for about $500, being the same note said parties of the second part got from the Missouri City Savings Bank.”

At the time this contract was entered into, there was a suit for divorce pending between Sallie Swinney and said William Swinney, her husband, and also a suit for partition of the land sold, the land being incumbered at the time by a deed executed March 1st, 1876, by William Swinney to John Chrisman, as trustee, which conveyed an undivided half thereof to said trustee for the sole and separate use of said Sallie Swinney during her life, and at her death to be conveyed to the children of said Sallie Swinney, and the children of said William Swinney then living. The suits in partition and divorce were compromised and settled, and Mrs. Swinney, for the sum of $1,000, agreed to convey to William Swinney all her interest in the land secured to her for life. This conveyance was, for convenience and at the instance of William Swinney, made to his daughter, Virginia Swinney. All other parties having any interest under said trust deed also conveyed their interests to Virginia Swinney, who having been thus invested with the entire title, executed on the 6th day of February, 1878, a bond for title to the defendants, containing the following condition:

“The condition of the foregoing obligation is such, that, whereas, the said Virginia Swinney has this day sold...