Fry v. Piersol
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | Valliant |
| Citation | 166 Mo. 429,66 S.W. 171 |
| Parties | FRY v. PIERSOL et al.<SMALL><SUP>1</SUP></SMALL> |
| Decision Date | 17 December 1901 |
v.
PIERSOL et al.1
INJUNCTION — FORECLOSURE OF TRUST DEED — PETITION — SUFFICIENCY — OFFER TO DO EQUITY — EVIDENCE — BURDEN OF PROOF — SUFFICIENCY.
1. A petition to cancel a trust deed given to secure a chattel mortgage debt fails to state a cause of action where plaintiff does not make a tender of the amount admitted to be due, or excuse for such failure.
2. A petition to cancel a mortgage because made by duress will not lie where it is not alleged that the mortgage was executed to secure a debt which petitioner did not owe.
3. The plaintiff has the burden of showing by a preponderance of the evidence that he executed the deed to escape the criminal prosecution.
4. Plaintiff, who was intelligent and shrewd, testified that he was unable to read or write, and that he was threatened with prosecution, which was denied by the defendant. Plaintiff and the justice of the peace who took the acknowledgment of the deed of trust testified that it was not read to plaintiff, but the latter testified that he knew its contents. The trustee advertised the property for sale under the trust deed, and plaintiff asked for further indulgence, which was granted on his paying $100 and costs. Held insufficient to authorize an injunction restraining sale under the trust deed on a future default of plaintiff.
Appeal from circuit court, Morgan county; D. W. Shackleford, Judge.
Injunction by Randolph Fry against John C. Piersol and others to restrain a sale of real estate under a trust deed. From a decree dissolving the injunction, the plaintiff appeals. Affirmed.
This is a suit in equity to enjoin a sale of land under a deed of trust on the ground that the deed was executed under duress. The substantial averments of the petition are to the effect that in February, 1893, the plaintiff executed two notes to defendant Piersol, — one for $600, and the other for $1,600, — due, respectively, August 1, 1893, and July 1, 1894, and at the same time executed a chattel mortgage on certain cattle on his farm in Morgan county to secure the same; that the understanding between the parties was that when the plaintiff paid the $600 note the principal part of the cattle should be released from the mortgage, and the plaintiff be free to sell the same, but by mistake or fraudulent design of the defendant Piersol
the stipulation in the mortgage provided for the release of a small part of the mortgaged property, the plaintiff being unable to read, and not knowing that the mortgage was so...
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Johnston v. Star Bucket Pump Co., 18784.
...of the opinion that the evidence so requires, we should treat his findings of fact in a law suit in the same way." 166 Mo. loc. cit. 408, 66 S. W. 171. It is apparent that Smith v. Baer, supra, did not decide the question mooted in State ex rel. v. Ice Co., and that the dictum of Judge Mars......
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McKay v. Snider, 39337
...165 S.W.2d 650; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126; McFaddin v. Simms, 273 S.W. 1050, 309 Mo. 312; Fry v. Piersol, 166 Mo. 439, 66 S.W. 171. (3) "He who seeks equity must do equity." Ebel v. Roller, 21 S.W.2d 214; Milan Bank v. Richmond, 280 Mo. 30, 217 S.W. 74; First Methodist Chu......
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Murphy v. Butler County, 38916
...costs, or any other allegation that can be construed as such offer. Mo. Dig. (Cancellation of Instruments) Key No. 24(2); Fry v. Piersol, 66 S.W. 171; Hawkins v. Heagerty, 156 S.W.2d 642; Davidson v. Gould, 187 S.W. 591. (3) The point that the petition fails to state a cause of action can b......
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Murphy v. Butler County, 38916.
...costs, or any other allegation that can be construed as such offer. Mo. Dig. (Cancellation of Instruments) Key No. 24(2); Fry v. Piersol, 66 S.W. 171; Hawkins v. Heagerty, 156 S.W. (2d) 642; Davidson v. Gould, 187 S.W. 591. (3) The point that the petition fails to state a cause of action ca......
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Murphy v. Butler County, No. 38916.
...costs, or any other allegation that can be construed as such offer. Mo. Dig. (Cancellation of Instruments) Key No. 24(2); Fry v. Piersol, 66 S.W. 171; Hawkins v. Heagerty, 156 S.W. (2d) 642; Davidson v. Gould, 187 S.W. 591. (3) The point that the petition fails to state a cause of action ca......
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McKay v. Snider, No. 39337.
...S.W. (2d) 650; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126; McFaddin v. Simms, 273 S.W. 1050, 309 Mo. 312; Fry v. Piersol, 166 Mo. 439, 66 S.W. 171. (3) "He who seeks equity must do equity." Ebel v. Roller, 21 S.W. (2d) 214; Milan Bank v. Richmond, 280 Mo. 30, 217 S.W. 74; First M......
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Kidd v. Schmidt, No. 36067.
...consideration and an offer to put plaintiffs in statu quo. First Methodist Church v. Berryman, 303 Mo. 475, 261 S.W. 73; Fry v. Piersol, 166 Mo. 429, 66 S.W. 171; Thompson v. Cohen, 127 Mo. 215, 29 S.W. 885; Girard v. St. Louis Car Wheel Co., 123 Mo. 358, 27 S.W. 648, 25 L.R.A. 514, 45 Am. ......
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Smith v. Baer
...minds of the ordinary jurors; still the practice obtains in equity cases. But no good reason appears for extending the practice to 66 S.W. 171 cases tried by referees, even though the reference was compulsory; and it will not be done. This court always looks into the record, when requested,......