Duncan v. Baker

• Decision Date: 31 October 1880
• Citation: 72 Mo. 469
• Parties: DUNCAN, Plaintiff in Error, v. BAKER.
• Court: Missouri Supreme Court

72 Mo. 469

DUNCAN, Plaintiff in Error,

v.BAKER.

Supreme Court of Missouri.

October Term, 1880.

Error to Audrain Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

Thomas N. Musick for plaintiff in error.

1. The contract between McHenry and Baker was in the nature of a mortgage and not a conditional sale. Wilson v. Drumrite, 21 Mo. 325; Conway v. Alexander, 7 Cranch 218; Turner v. Kerr, 44 Mo. 429; Thompson v. Davenport, 1 Wash. (Va.) 127; Desloge v. Ranger, 7 Mo. 327; Sharkey v. Sharkey, 47 Mo. 543; Brant v. Robertson, 16 Mo. 129; Tibeau v. Tibeau, 22 Mo. 77; O'Neill v. Capelle, 62 Mo. 202; Copeland v. Yoakum, 38 Mo. 349; Flagg v. Mann, 2 Sumner 533.

2. Plaintiff in error being a second mortgagee, all the rights of redemption in McHenry accrued to him. Wash. on Real Prop., (3 Ed.) p. 518, § 10.

3. Plaintiff in error having brought this action to redeem in a court of equity, and defendant in error, in disregard or contempt of the action, having sold the lands pending the action, plaintiff in error has a right to compensation. Wilson v. Drumrite, 21 Mo. 325.

McFarlane & Trimble for defendant in error.

1. The clause in the deed from Jackson to McHenry, by which the latter assumed and agreed to pay plaintiff's mortgage debt, was a mere covenant to indemnify the grantor, Jackson. Jackson was not himself bound for the debt. Douglass alone was bound for it. The covenant was not made for the benefit of plaintiff, and there is no such privity between him and Jackson as would make the covenant inure to his benefit. Tweddell v. Tweddell, 2 Bro. C. C. 101; Woods v. Huntingford, 3 Ves. 130; Tichenor v. Dodd, 4 N. J. Eq. 45; Klapworth v. Dressler, 13 N. J. Eq. 62; Crowell v. The Hospital, 27 N. J. Eq. 650; Van Horn v. Powers, 26 N. J. Eq. 257; Bull v. Titsworth, 29 N. J. Eq. 73; Kearney v. Tanner, 17 Sand. R. 94; Campbell v. Shrum, 3 Watts 60; Girard Ins. Co. v. Stewart, 5 W. N. C. 87; Samuel v. Peyton, 36 Leg. Int. 96; Pike v. Brown, 7 Cush. 133; Branman v. Dowse, 12 Cush. 228; Pettee v. Pennard, 120 Mass. 522; Townsend v. Ward, 27 Conn. 614; Trotter v. Hughes, 12 N. Y. 77; King v. Whitely, 10 Paige 465; Vrooman v. Turner, 69 N. Y. 282; s. c., 25 Am. Rep. 195; Miller v. Whipple, 1 Gray 31; Tumas v. Durgin, 119 Mass. 500.

The contract between defendant and McHenry was not in writing and was within the statute of frauds and could not be enforced, even by McHenry, unless it operated as a fraud upon him. Medsker v. Swaney, 45 Mo. 273; much ess could it be enforced by plaintiff. If the verbal conract was good, it was rescinded by the written contract afterward made. Price v. MeGown, 10 N. Y. 465. The written contract fixed the amount to be paid and the day of its payment. Time was of the essence of the contract and was not waived. Melton v. Smith, 65 Mo. 315. The matter between McHenry and defendant was arranged to the satisfaction of both, and if plaintiff has any remedy it is upon the covenant against McHenry personally.

NORTON, J.

In 1874 one Fisher owned 460 acres of land in Audrain county, and on said day he executed to one Durkee, as trustee, a deed of trust, to secure a note made by himself for about $2,000, payable to the North Western Insurance Company, due five years thereafter, with interest payable semi-annually. This deed gave the trustee power to sell the land in case the interest was not paid. Afterward, in October, 1874, said Fisher, by warranty deed, conveyed said land to one James R. Douglass, subject to said deed of trust, and on said day, said Douglass made his note to plaintiff for $2,300, and to secure the same executed a mortgage on said land. In December, 1874, Douglass conveyed said land, by warranty deed, subject to said deed of trust and mortgage, to James Jackson. In July, 1876, Jackson conveyed 260 acres of this land, by deed of general warranty, to one McHenry, he assuming and agreeing to pay plaintiff's mortgage debt--Jackson at the same time giving McHenry a mortgage on the remainder of the land, indemnifying him against the prior insurance deed of trust. At the time of this transaction, as the evidence shows, these parties agreed that Jackson should pay the insurance debt, and McHenry plaintiff's mortgage. McHenry did pay plaintiff $1,672 on his mortgage debt; not, however, until he had obtained a verbal promise from plaintiff that he would protect him against the insurance deed of trust. The interest then due on the insurance debt was not paid by either Jackson or plaintiff, and the whole land went to sale under its deed of trust, and defendant became the purchaser for about $2,300. A few days previous to the sale under the deed of trust, McHenry and Baker entered into a verbal agreement, by which defendant was to purchase the land and give McHenry the right to redeem. Sometime after the sale, McHenry failing to redeem, they entered into a written contract, by which McHenry had the right to redeem by a day fixed, or forfeit his right to do so. He still failed to redeem, and at the expiration of the time given he and defendant finally settled the matter, defendant paying McHenry $600, and McHenry giving him possession of the land. The matter between them was thus adjusted in January, 1877, and the 26th day of May, of that year, plaintiff commenced a suit in equity against both defendant and McHenry,...