Parkey v. Veatch

• Decision Date: 12 June 1901
• Citation: 164 Mo. 375,64 S.W. 114
• Parties: PARKEY v. VEATCH.
• Court: Missouri Supreme Court

64 S.W. 114

164 Mo. 375

PARKEY v. VEATCH.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

MORTGAGE — ASSIGNMENT — PURCHASER OF EQUITY OF REDEMPTION OF ONE TRACT.

Where defendant purchased plaintiff's interest in a tract of land at an execution sale, and afterwards purchased a note secured by deed of trust of such tract and another belonging to plaintiff, he cannot enforce such mortgage against such other land, but it and the note will be canceled on plaintiff's tender of the pro rata share of the debt resting on the land retained by him.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Suit by James Parkey against Albert M. Veatch to cancel a note and a trust deed securing it. From a decree in favor of plaintiff, defendant appeals. Affirmed.

J. M. Winters and Perry S. Rader, for appellant. A. W. Mullins and D. M. Wilson, for respondent.

BRACE, P. J.

The plaintiff, James Parkey, and his wife, Sarah S. Parkey, were the owners of 320 acres of land in Sullivan county. That is to say, Sarah S. Parkey was the owner in fee of the S. W. ¼ of the N. W. ¼ of section 15, containing 40 acres; James Parkey and Sarah S. Parkey were the owners in fee, as tenants in common, of the N. E. ¼ and the N. E. ¼ of the N. W. ¼ of section 16, containing 200 acres; and James Parkey was the owner in fee of the N. W. ¼ of the N. W. ¼ and S. E. ¼ of the N. W. ¼ of section 16, containing 80 acres, — all in township 62, range 19. On the 4th of June, 1891, by their deed of that date, duly executed, acknowledged, and recorded, they conveyed all of said real estate to Frank Madden in trust to secure the payment of their 15 promissory notes of that date to the Omaha Loan & Trust Company, — one principal note for $3,000, payable seven years after date, and 14 coupon interest notes, each for $88.50, payable semiannually after that date. Afterwards, on the same day, the said James and Sarah S. Parkey, by a second deed of trust of that date duly executed, acknowledged, and recorded, conveyed all of said real estate to said Madden in trust to secure the payment of their 3 other promissory notes of that date, payable to the said Omaha Loan & Trust Company, each for the sum of $140, in one, two, and three years from date, with 10 per cent. interest. Afterwards, on the 15th day of October, 1891, the said James and Sarah S. Parkey, by a third deed of trust of that date, duly executed, acknowledged, and recorded, conveyed all of said real estate to James M. Winters in trust to secure the payment of their promissory note of that date for $334.85, to N. J. Winters, payable 90 days after date, with 8 per cent. interest. Afterwards, on the 19th of November, 1891, the defendant, Veatch, obtained judgment in the circuit court of Sullivan county against the said Parkey for the sum of $300, on which execution was issued, and all the interest of the said James Parkey in the said 200-acre tract was sold to the said Veatch, who received a sheriff's deed therefor, dated May 27, 1892. Afterwards, on the 19th of November, 1894, the said Veatch obtained judgment in said circuit court against the said James and Sarah S. Parkey for the possession of said 200-acre tract, by virtue of which he took, and ever since has remained in, possession thereof. Afterwards, on the 8th of January, 1895, the said defendant purchased the said Winters note for $334.85. The same was duly assigned to him, and, remaining due and unpaid, he caused the whole of the 320 acres of land conveyed by the said third deed of trust to secure the same to be advertised for sale on the 12th of March, 1895, in pursuance of the power therein contained. On the 4th of March, 1895, the plaintiff, by two deeds of that date, acquired the interest of his wife in the S. W. ¼ of N. W. ¼ of section 15, and thus became the owner of 120 acres of the 320 acres, subject to the incumbrances, all of which was of about the same value per acre; and on the 8th of March, 1895, he tendered to the defendant three-eighths of the total amount due on said note and deed of trust, for principal, interest, and costs, which tender the defendant refused to accept; and the plaintiff brought this suit in equity in the circuit court of Sullivan county on the 11th of March, 1895, his petition herein being as follows: "Plaintiff states: That on the 15th day of October, 1891, he and his wife, Sarah S. Parkey, made, executed, and delivered to N. J. Winters their promissory note, secured by their certain deed of trust on the following described 320 acres of land, viz.: The southwest fourth of the northwest quarter of section 15, and the northwest quarter and the east half of the northwest quarter and the northwest fourth of the northwest quarter of section 16, all in township 62 of range 19. That afterwards, to wit, on the 19th day of November, 1891, the defendant recovered judgment against the plaintiff in the Sullivan county circuit court for the sum of $276.74, debt and costs of suit; that said defendant afterwards caused an execution to issue out of said court on said judgment, directed to the sheriff of said county, and that said sheriff afterwards, by virtue of said execution, in the manner prescribed by law, levied upon, advertised, and sold 200 acres of said land, described as follows, to wit: The northeast quarter and the northeast fourth of the northwest quarter of section 16 in township 62 of range 19. And at said sale said Veatch, the defendant, became the purchaser of said 200 acres, and received a sheriff's deed therefor. That afterwards, to wit, at the May term, 1894, of this court, the defendant commenced a suit in this court in ejectment for the recovery of...