How v. Graham
| Decision Date | 31 March 1855 |
| Citation | 21 Mo. 163 |
| Parties | HOW AND BOGUE, Appellants, v. GRAHAM AND OTHERS, Respondents. |
| Court | Missouri Supreme Court |
1. A court of equity will not, unless under special circumstances, compel the holder of a prior deed of trust on real estate, which is past due, to permit the holder of a second deed of trust not yet due to redeem and take an assignment.
Appeal from St. Louis Land Court.
This was a petition filed in September, 1854, to redeem a deed of trust on real estate. The facts stated in the petition were, that on the 2d of August, 1852, the trustee of the wife of Graham, by her consent, conveyed the real estate to the plaintiff, How, in trust to secure the payment to the plaintiff, Bogue, of ten promissory notes, one for $4387.10, payable five years after date, and nine for $127.78 each, payable semiannually; that prior to this, to-wit: on the 23d of August, 1851, the same real estate had been conveyed by Mrs. Graham and her trustee to one of the defendants, in trust to secure to Michael Lynch the payment of two promissory notes, each for $731.33, payable one in nine and the other eighteen months after date; that said last mentioned notes and deed of trust were by Lynch endorsed and transferred to Charles Bobb, another of the defendants; that the first and a portion of the second of the notes secured by the last named deed of trust had been paid; that the plaintiff, Bogue, had tendered to Bobb the balance due upon the second note, with interest, and had requested him to assign to him the note and deed of trust, but that he refused to accept the money or make the assignment.
The petition further stated that the security of Bogue for his debt was greatly impaired by the existence of the prior deed of trust, wherefore he prayed to be permitted to redeem, and that the defendant, Bobb, be required to assign, etc.
The petition was demurred to, and the following causes assigned:
1. It does not appear who is in possession of the mortgaged premises.
2. It does not appear who is seized of the mortgaged premises in fee.
3. It does not appear who is receiving the rents of the mortgaged premises.
4. It does not appear who is the owner of the mortgaged premises.
5. There is no averment of an absolute and unconditional tender of the money to Bobb.
6. There is no equity stated in the petition--no fact by which the incumbrance of Bogue is endangered.
7. The plaintiffs are not entitled to the relief asked.
The demurrer was sustained, and the petition dismissed, and ...
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