Napton v. Hurt

• Decision Date: 31 October 1879
• Citation: 70 Mo. 497
• Parties: NAPTON, Appellant, v. HURT.
• Court: Missouri Supreme Court

70 Mo. 497

NAPTON, Appellant,

v.HURT.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Gage & Ladd for appellant.

F. M. Black and Jas. F. Mister for respondent, cited Kane v. McCown, 55 Mo. 181; Waller v. Arnold, 71 Ill. 350; s. c., 1 Cent. Law Jour. 548.

HENRY, J.

The petition alleged, that on the 21st day of April 1862, William Bales and wife, by their mortgage conveyed to Benjamin Perry, with power of sale, certailots in Kansas City described therein, and afterwards conveyed the same lots, subject to the mortgage, to John S. Harris who on March 15th, 1873, conveyed all his interest therein to Henry Tobener, president of the Union German Savings Bank, for the benefit of said bank; that afterwards the said bank was adjudged bankrupt, and James C. Babbitt, duly appointed assignee of said bank, received from John K. Cravens, register in bankruptcy, a conveyance of all the right, title and interest of said bank in the said property; and at the request of the holder of the note secured by the mortgage from Bales, and an order of the district court for the western district of Missouri, on the 23rd of August, 1873, said Babbitt regularly sold said property, and the defendant, James Hurt, became the purchaser at the sum of $560, of lots 2 and 4 in block 8, conveyed by said mortgage; that on the 18th day of December, 1869, the plaintiff and his wife executed and delivered to one Isaac M. Ridge, as trustee, their certain deed of trust of certain real estate therein described to secure a promissory note for $953.50, payable twelve months after its date to Thomas Smart, or order, which deed of trust provided, that if plaintiff failed to pay said note and interest when due, the trustee should proceed to sell the said property, or so much as should be necessary to pay said note and interest, at public sale for cash, at the west door of the court house in the City of Kansas, county of Jackson, and State of Missouri; that afterwards said Hurt, defendant, became the holder of the note executed by plaintiff, and plaintiff became the assignee of the claim against Hurt, on account of his bid of $560 for the lots 2 and 4 purchased by him at said Babbitt's sale. The petition alleges that Napton tendered to Hurt $741 cash, and the said claim for $560, and a deed for said lots 2 and 4, which Hurt refused to receive in payment of plaintiff's note held by him, and plaintiff brought into court and deposited with the clerk said $741 and said deed. It also alleges that said Hurt had caused the trustee, in the said deed of trust, executed by plaintiff, to advertise said property for sale on the 8th day of June, 1874, between the hours, &c., at the court house door in the City of Kansas, county of Jackson, State of Missouri, to satisfy said note; that at...