Jasper Cnty. v. Tavis
| Decision Date | 31 October 1882 |
| Citation | 76 Mo. 13 |
| Parties | JASPER COUNTY v. TAVIS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jasper Court of Common Pleas.--HON. E. O. BROWN, Judge.
REVERSED.
This was an action of ejectment for a forty acre tract of swamp land. Defendant claimed under one Geo. E. Ward. The evidence given at the trial showed that on the 11th day of February, 1858, the county court of Jasper county sold this tract, with many others, to Ward at ninety cents per acre; that Ward was to give his note with approved security for the purchase money of all the tracts' the note to be payable on the 11th day of February, 1859, and to bear interest after maturity at ten per cent per annum; that the note was given accordingly; that Ward received from the swamp land commissioner of the county a certificate setting forth the terms of the purchase and declaring that upon payment made for any one or more of the tracts according to these terms, the commissioner would execute a deed for the same. The evidence further showed that Ward's note not being paid at maturity the county brought suit upon it; and that pending this suit Ward executed the following document:
Know all men by these presents: That whereas, there is now pending against me and others in the circuit court of Cedar county, in the State of Missouri, a suit in the name of the county of Jasper, in said State, for the sum of $68,377.80, the foundation of which suit is a note due from me and others to the said county of Jasper, dated 11th day of February, 1858, payable twelve months after date, bearing interest at the rate of ten per centum per annum from maturity. Now, for and in consideration that the said county will dismiss said suit, I do hereby agree and bind myself to pay to said county all the interest annually that has accrued or may accrue on said note till the same is formally discharged and paid off, at the rate of ten per centum per annum, and if the same is not punctually paid the interest is to bear interest as the note aforesaid. In testimony whereof, I have hereunto set my hand and seal, this 30th day of May, 1860.
GEO. E. WARD. [SEAL.]
There was no evidence of any formal action taken by the county court upon the receipt of this document; but the evidence showed that the suit referred to in it was dismissed; that afterward Ward executed the conveyance under which defendant claimed, and that defendant had improved the land and built a dwelling house on it. At the time of the institution of this suit the whole of the purchase money for the tract in controversy was still due, and the defendant was willing and offered to pay the same with simple interest as specified in the certificate of purchase, but the plaintiff claimed compound interest under the agreement of May 30th. The trial court sustained the plaintiff's claim and adjudged that upon payment by defendant to plaintiff of the sum so claimed ($204) and the costs “within sixty days from this date, all right, title and interest of plaintiff in and to said land shall be divested from plaintiff, and shall vest absolutely in defendant; free from any lien, claim or equity of plaintiff; but in default of the payment of said sum within sixty days from this date, it is ordered that a writ of possession issue against defendant, and that he be forever barred from asserting any right, title or suit in and to said land.”
John M. Richardson and Ewing & Hough for appellant.
The proposition of Ward was to pay interest on in terest not yet due; the consideration of which proposition was further indulgence and ““forbearance.” Had the proposition ripened into a contract it would have been in conflict with the statute and illegal. It was to pay more than ten per cent for forbearance. R. S. 1855, p. 890, § 4. Not having been filed and acted upon by the county court, it does not amount to a contract, though the county did dismiss her suit. Dennison v. St. Louis Co., 33 Mo. 168. As a contract to pay compound interest it is not valid. Such a contract must be evidenced by the instrument by which the money is secured to be paid. R. S. 1855, p. 891, § 6; Payne v. King, 38 Mo. 507; Toll v. Hiller, 11 Paige 228; Townsend v. Corning, 1 Barb. 627....
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