Clarkson v. Creely

• Decision Date: 31 March 1864
• Parties: MARGARET CLARKSON et als., Appellants, v. CHARLES CREELY et als., Respondents.
• Court: Missouri Supreme Court

35 Mo. 95

MARGARET CLARKSON et als., Appellants,

v.CHARLES CREELY et als., Respondents.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Land Court.

A. J. P. Garesché, for appellants.

I. This is not a suit between the holder and the maker of the note; therefore the decisions of Atwood v. Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462, and of Bond v. Worley, 26 Mo. 255, do not apply. But in Garnier v. Papin, 30 Mo. 247, the court intimates that injunction would be a remedy to enforce such agreements, as are declared in these cases to be invalid as defences at law.

II. The agreement as set up in the petition is a valid one, and would constitute a valid defence even in an action at law. (Ward, Ass. v. Winship, 12 Mass. 500; Peabody v. Peter, 5 Pick. 1; Farnham v. Ingham, 5 Ver. 14; Hayes v. Gorman, 2 Scam. 430.)

III. It is but right then to enforce it when its disregard would work such hardships and injustice that courts of equity will interfere. (Stong et als. v. Wilkson et als., 10 Mo. 93.)

IV. Luney's neglect to pay the purchase money gave a right to redeem. (Heuer v. Rutkowski, 18 Mo. 216.)

Glover & Shepley, for respondents.

BATES, Judge, delivered the opinion of the court.

The amended petition stated that Robert Clarkson died intestate, and that the plaintiffs are his widow and minor children, his heirs; that in his lifetime he made a deed of trust of land in St. Louis, to Creely as trustee, to secure the payment of a promissory note to McCartney & Co.; and that after the maturity of the note, the defendant Luney purchased it from McCartney & Co. The petition then proceeds as follows:

“Plaintiffs further allege that said Margaret Clarkson for and in behalf of herself, and of her co-plaintiffs, her children, induced said Luney to make the purchase, promising and covenanting to and with him said Luney, that if he should purchase said note of said McCartney & Co., and extend the term of the payment for such time as she should be able to pay it, she would pay to him ten per cent. per annum interest, in lieu of the six per cent. the note bore.

Plaintiffs further state, that it was in consideration of, and in pursuance of this agreement, that said Luney (defendant) purchased said note.

Plaintiffs further state, that about the middle of September last past, said Luney demanded payment of same; whereupon said Margaret Clarkson offered to pay him one or two hundred dollars down; and as she was not able then immediately to pay the balance, that he should wait for the balance until November then next ensuing, and now last past.

Plaintiffs further allege, that thereupon said Luney declared that he could not then agree to it, but would take the proposition under advisement, and would take no action until he advised her of the acceptance or rejection of the offer; that afterwards, without any notice to her or her co-plaintiffs, said Luney intending to defraud said plaintiffs, caused the trustee in said deed of trust, the said Charles Creely, to advertise the said property, and in conformity with the advertisement it was sold on Saturday, the 15th of October, 1859; that said Margaret Clarkson, then hearing for the first time of these proceedings, hastened to said Luney, and tendered to him the whole amount of what was due, but said Luney would not accept of it; that on the day of the institution of this suit she has again tendered it to him, and also all costs of sale to said trustee, said Charles Creely, defendant, and also to said Luney, defendant; but neither of them will accept of it.

Plaintiffs further state, that at said sale the said Luney (defendant) became the purchaser of said property for the sum of ten hundred...