Kennedy's Adm'x v. Hammond

• Decision Date: 31 March 1852
• Citation: 16 Mo. 341
• Court: Missouri Supreme Court
• Parties: KENNEDY'S ADMINISTRATRIX, Plaintiff in Error, v. HAMMOND & HALL, Defendants in Error.

16 Mo. 341

KENNEDY'S ADMINISTRATRIX, Plaintiff in Error,

v.HAMMOND & HALL, Defendants in Error.

Supreme Court of Missouri.

March Term, 1852.

A. conveyed to B. a mill and leasehold, to secure to C. the payment of two notes. After the first and before the second note matured, the property was advertised and sold, pursuant to the terms of the deed of trust, and D. became the purchaser. After the sale, D. tendered to B. the amount of the note which had actually matured, and produced the receipt of the assignees of the grantor for the balance of his bid, and demanded a deed. B. refused to deliver a deed, and when the second note became due, again advertised the property for sale. D. applied for and obtained an injunction. When the injunction was dissolved, the lease had been declared forfeited and the mill burned down, so that the mortgaged interest would not have sold for enough to defray the expenses of a sale. Held,

1. D. had no right to a deed until he tendered the amount of both notes, although one of them had not matured.

2. Upon the dissolution of the injunction, the damages were properly assessed at the whole amount of the notes, with interest, etc., even though the makers of the notes were solvent.

Error to St. Louis Circuit Court.

On November 6th, 1847, James Kennedy filed his bill of complaint in the Circuit Court for the county of St. Louis, sitting in equity, against the defendants, setting forth that Elisha Hall, Judson Allen and Joshua J. Childs, by their deed, dated May 15th, 1846, conveyed to John R. Hammond certain ground, with a steam saw mill thereon, in the city of St. Louis, leased by them from William Chambers for ten years, together with the lumber, tools, etc., on the premises, in trust to secure the payment of two certain notes, made by said Hall, Allen and Childs to the defendant, Hall, one for $1,030, dated April 1st, 1846, and payable twelve months after date, and the other for the same sum, and of the same date, but payable eighteen months after date; with power to sell said property, or any of it, in case default was made in the payment of either of said notes at its maturity, at auction, in a certain manner in said deed provided for; that said first named note was not paid at maturity, and thereupon said Hammond sold said property in the manner provided for in said deed, and at said sale the complainant, Jas. Kennedy, became the purchaser, at the price of $2,800. The sale was made June 7th, 1847. That thereupon, as soon thereafter as said Hammond was ready to deliver a deed, said Kennedy tendered to him a sum of money sufficient to pay said first named note, and interest, and all expenses of the execution of the trust, and the receipt for the balance of the $2,800 from Primus Emerson and Joshua J. Childs, and demanded of said Hammond a deed of conveyance of said property, which the said Hammond had at the time executed and ready for delivery, but said Hammond refused to receive said tender, and deliver said deed, and insisted that he should be paid the whole amount of both of said notes; that prior to said sale said Hall and Allen had assigned and transferred said leasehold property to Primus Emerson, and at the time of said sale, and said tender, said Childs and Emerson were the sole owners of said leasehold, which was known to said Hammond; that afterwards, when said second note became due, said Hammond again advertised said property to be sold October 6th, 1847, under said deed of trust; and by reason of the premises, the complainant prayed for an injunction of said advertised sale, and that said Hammond be decreed to make and deliver to him a deed of conveyance of said property, by virtue of his said purchase thereof, and tender aforesaid, he being ready and willing, as he always had been, to satisfy his bid to said Hammond, as aforesaid, for said property.

An injunction of said sale was granted October 6th, 1847, with the usual security bond. The defendants filed their several answers to said bill, admitting the allegation of facts set forth in the bill substantially, but setting up that no such evidence of the alleged sale to Kennedy was made as required by the statute of frauds; that the property was indivisible, and that its transfer by Hall and Allen to Emerson was made subject to the deed of trust, and that Childs and Emerson were of doubtful circumstances at the time of the sale, and that their receipt for the balance of the $2,800, bid by Kennedy for the property, was a fraudulent contrivance with Kennedy for depriving the defendant, Hall, of his security, by said property, for the payment of said notes. The deed of trust is filed as an exhibit, and in the answer of said Hall the following provision therein is set forth, to-wit: that upon a sale thereunder said Hammond should receive the proceeds of the sale, and out of them pay, first, the expenses of executing the trust; next, the sum due on said notes, or either of them, and lastly, should pay the balance, if any, to the grantors in said deed of trust.

To these answers the complainant filed a replication. Afterwards Kennedy died, and his wife, Amelia, being administratrix of his estate, was made complainant in his stead.

Upon the hearing it was admitted that Kennedy, within a proper time after the sale, made to Hammond the tender alleged in the bill, and that Hammond knew, at the time, that Childs and Emerson were the sole owners of the property, as alleged, and that, at the time of such tender, Hammond had executed and ready for delivery a deed of conveyance of the property to Kennedy, but refused to deliver it upon such tender, on the grounds that the tender should be of enough money to pay both notes, and interest accrued thereon, and the expenses of the execution of the trust.

Also, that the property was incapable of a division, and had to be sold together, and that, at the time of sale, and still, neither of said notes had been paid. Thereupon, to-wit: December 2d, 1850, the court decreed a dissolution of the injunction and a dismissal of said bill, with costs, and, upon motion of defendants, an assessment of damages by a jury was ordered.

The complainant moved the court in proper time for a rehearing, which was refused by the court, to which refusal the complainant duly excepted.

Upon the inquiry of damages, had December 3d, 1851, evidence was by the defendants introduced showing the following facts, to-wit: that the premises were leasehold, under a lease from William Chambers to Elisha Hall, said Childs and Allen, for ten years, with a condition of forfeiture for the non-payment of rent, as agreed; that in March or June, 1847, the premises were forfeited for the non-payment of rent, and shortly after a suit was instituted to enforce said forfeiture, which was still pending; that upon the premises was a saw mill, driven by steam, which cost $5,000 to $7,000; that during the pendency of the injunction the mill burned down, and that its remains were worth from $1,200 to $1,500, all of which had been disposed of or was dispersed; that the lessor, after the fire, which occurred in August, 1849, took possession of the premises, and let them to others, who have ever since had possession thereof. Isaac H. Sturgeon, a witness, testified that in his opinion an auction sale of the premises, in its then condition--a suit pending to declare a forfeiture-- would not have given any thing at all.

Defendants further introduced evidence to show that, after the execution of the deed of trust, Allen sold his interest to Childs and Emerson, subject to the payment of the debt mentioned in the deed of trust; afterwards Elisha Hall sold all his interest to Childs and Emerson, subject to said debt; Childs afterwards sold out to Emerson, and Emerson to John Maguire, in like manner, subject to said debt. All these transfers were before the sale, except the last, which was shortly after; that Maguire had been in possession before the fire, and had rented them for $2,000 per annum, and procured insurance, and received the insurance upon it. The deed of trust contained a stipulation that the mill should be insured for the benefit of the creditor. It appeared that Kennedy purchased for Maguire, and that the present suit was for his benefit.

The notes were read to the jury, and it was proved that the printer's bill for advertising the last sale was eight dollars, and defendants' reasonable attorneys' fees for defending were fifty dollars.

It was proved that Hall and Allen had all along been and still were worth $3,000, and residents of the city of St. Louis. This was all the evidence. For the complainant, the following instructions were asked.

1. In this case the defendant is not entitled to recover for damages to exceed ten per centum upon the amount of the debt.

2. The defendants are not entitled to any damages, by reason of the burning of the saw mill pending the injunction.

3. If the jury believe from the evidence that the parties, or any of them, to the notes in evidence, are and have been solvent and good for the notes, then the defendant is entitled to recover only for what he has proved he has paid out and incurred properly in defending this suit, and advertising the sale in October, 1847.

4. If the jury believe from the evidence that the lease from Chambers to Hall, Allen and Childs was forfeited before the commencement of this suit, then the burning of the saw mill is no evidence of damage to the defendants.

5. If the jury believe from the evidence that the parties, makers of the notes given in evidence, or any of them, are and have been continually solvent, then the burning of the mill, during the pendency of the injunction, is not sufficient evidence to enable the defendants to recover damages, by reason of such burning.

These instructions the court refused to give, to which decision of the court the complainant duly excepted.

On behalf of the defendants, the following instruction was asked and given, to-wit:

“If the jury find...