Perry v. Craig

• Decision Date: 31 October 1834
• Citation: 3 Mo. 516
• Parties: PERRY, THE EXECUTOR OF PERRY AND BRYAN, v. CRAIG.
• Court: Missouri Supreme Court

3 Mo. 516

PERRY, THE EXECUTOR OF PERRY AND BRYAN,

v.CRAIG.

Supreme Court of Missouri.

October Term, 1834.

1. BAILMENTS--REDEMPTION.

In case of a pledge, when no time is mentioned, the pledgor has his life-time to redeem in, on the condition that the pawnee may hasten the time by request; and should the pawnor, after request, not redeem in reasonable time, the pawnee may sell the pledge and get his money.

2. CONTRACTS--MORTGAGES--CONSTRUCTION.

In contracts of mortgages, and of all other kinds, to ascertain what the parties mean, we must in some instances look not only at the words, but to the subject matter of the contract, and in cases of mortgages of things of valuable price, where no time is mentioned, the mortgagor ought to redeem while the article is at a fair value.

3. CHANCERY--STATUTE OF LIUITATIONS.

The time fixed by law in which a right must be pursued, furnishes also a bar in equity, when the party seeks that court for redress.

SAME--NEGLIGENCE.

Negligence and lapse of time will form objections to a complainant's right in all cases, no matter whether founded on a mortgage, equity of redemption, or other matters of equity.

5. SAME--POVERTY.

Poverty cannot be allowed as an excuse for a party's not bringing suit in time.

APPEAL FROM WASHINGTON CIRCUIT COURT.

M'GIRK, C. J.

In the year 1827, Craig brought a bill in chancery against James F. Perry and wife in the Circuit Court of Washington county. The substance of the bill is, that in the year 1810, some time in the spring of the year, he had occasion to borrow the sum of five hundred dollars, and that he applied to James Bryan, who then lived in the now limits of the county of Washington, to lend him the same; that Craig lived in Ste. Genevieve county, at the Mississippi salt works; that Bryan agreed to lend him the money, and did so on the 10th of July of the same year, and that Craig, in consideration of said loan, and to secure the re-payment to Bryan, executed to him a deed of mortgage on the same day for a certain negro woman named Sarah, and her child, which negroes with their increase were to be returned to Craig by Bryan, so soon thereafter as Craig should repay the money with interest, and that the slaves had long been and then were in possession of Craig, and that he then delivered the same to Bryan for the purpose of securing the payment of the money, and that he then executed to Bryan the following mortgage under his seal: “Know all men by these presents, that I, George Craig, for and in consideration of the sum of five hundred dollars lawful money, to me in hand paid by James Bryan, have bargained, sold and delivered, and by these presents doth bargain, sell and deliver unto the said Bryan, one negro woman slave, and child one year old, the woman about 27 years, named Sarah, and I hereby warrant and defend the title and claim to the said negro woman, and that she is healthy and sound, upon these conditions, that the said negro woman may be redeemed by the said Craig according to the tenor and effect of his contract entered into with said Bryan. Given under my hand and sealed this 10th day of July, 1810, (signed) George Craig. [Seal.]” The bill then states that Craig in the spring of the year 1810, when he borrowed the money of Bryan, was engaged in the county of Ste. Genevieve, in which Bryan then lived, in making and manufacturing salt, and that Bryan was then engaged in merchandizing in said county, at a place now in Washington county, and that Bryan expressly agreed with Craig to take salt to the amount of said loan at the rate of two dollars per bushel, from time to time, as Craig could make it saying he could or would rather have the salt than the money, as he could sell it at a profit. The bill then states this is the agreement alluded to in the condition of the deed of sale and mortgage; Craig says about that time he actually, in pursuauce of the agreement, did sell and deliver to Bryan one hundred bushels of salt, at two dollars per bushel, and also, after the date of the deed of mortgage, he delivered one hundred bushels more at the request of Bryan, on the agreement. Craig mended his bill, and made the executors of Samuel Perry and Timothy M. Bryan parties. By this amended bill, he states the agreement and mortgage again, and somewhat different from the first statement. He states, that in the spring of the year 1810, one Jenkins had a judgment and execution against him for six or seven hundred dollars, and that to pay off the same, he applied to James Bryan for the money in the month of May, 1810; that Bryan lent him five hundred dollars, and that to secure the re-payment, he made the mortgage above referred to, and Craig says, at the same time it was agreed between him and Bryan, that inasmuch as Craig was then in the salt making business, and Bryan was merchandizing, that whatever quantity of salt Bryan should send for before or after the five hundred dollars should be advanced, the same should go to the credit of Craig toward redeeming the slaves. That shortly after the arrangement, and before the money was advanced, Bryan sent and got eighty bushels of salt, which salt was to be valued at the market price, and that salt was worth two dollars per bushel; Craig then charges that the money was a loan, and that the negroes were mortgaged to secure the re-payment, and that it was expressly understood and agreed that he might redeem the slaves at any time; the bill further charges the delivery of other quanties of salt.

The bill then goes on to state, that Sarah has had large increase, some four or five children, and that they are now all of great value, and that Bryan has had possession of the said slaves ever since the mortgage was made, till his death in 1820: that the widow of said Bryan continued on in possession of the same till her intermarriage with James F. Perry in 1825; that he then took possession of the slaves, and still continues in possession of the same, and refuses to deliver the same to him although he has offered to pay on said mortgage whatever may be due, and that he is still ready to pay whatever may be due; he also states that the labor of the slaves is of great value, &c. J. F. Perry and wife answer: the wife knows nothing of the affair; found the slaves in her husband's possession; at his death she continued the possession; her husband died making no will, and that there never has been any administrator. Perry says, he found the slaves in possession of the widow Bryan when he married; that he found the mortgage mentioned by Craig, and makes exhibit of it; that in the year 1826, he and Samuel Perry purchased the slaves of Timothy M. Bryan, of Philadelphia, for the sum of twelve hundred dollars, which sum was paid to Bryan in cash, and that he never had any notice of Craig's claim till some time after his purchase, and that the first time he ever had any notice of the same, was from Craig, who a short time before the commencement of the suit, called on him and stated his claim to the slaves, and offered to enter into an account in relation to them, which he the defendant rejected; but that Craig, at that time, neither tendered money to him on account of the contract with J. Bryan, nor did he offer any thing else in discharge of the mortgage, nor was Samuel Perry present; that he found the mortgage among the papers of J. Bryan after much search, having never seen it before; insists that himself and S. Perry are purchasers for a valuable consideration without notice, and also insists on the statute of frauds, and on the statute of limitations. J. F. Perry is appointed guardian for the infant children of J. Bryan, who are made parties; their answer is, that they have no knowledge of the matt

Samuel Perry says he was acquainted with Craig and Bryan before 1810, and since: that he first saw the negro woman in 1810, in possession of Bryan at his house at Hazle run, Ste. Genevieve county; that Craig and Bryan both lived in the same neighborhood; that he knew the slaves to have continued in possession of Bryan and his family up till 1826, when bought of T. M. Bryan; that he was often, in the course of business, in company of George Craig, and that he never heard from Craig or any other person, that Craig had any claim on the negroes, that in 1823 or 24, T. M. Bryan, of Philapelphia, proposed to sell the said woman and her increase to him stating that they belonged to him, and that he had purchased them of James Bryan in his life-time to secure a debt for goods and money borrowed of him, T. M. Bryan, some years before; that he, S. Perry, then declined purchasing, but afterwards concluded to purchase jointly with J. F. Perry, and accordingly, in 1826, being in Philadelphia, did purchase the said slaves for himself and J. F. Perry for the sum of $1250, which he paid to T. M. Bryan in cash; and that himself and J. F. Perry, his partner, have kept and enjoyed the slaves every since. The bill charges James Bryan was insolvent at and before his death; as to this, Samuel Perry says he does not know Bryan was insolvent, but thinks if he had lived a few years, he would have paid all his debts, &c., and that he never so much as heard of Craig's claim till he was sued by Craig; that he denies all confederacy, combination, &c. T. M. Bryan answers and says, that as to any bargain or mortgage between Craig and James Bryan, and as to any bargain relating to salt, he is entirely ignorant, and further answering says, that James Bryan was indebted to his father, Guy Bryan, in 1812, in the sum of upwards of $2000 for money advanced to him by said Guy of Philadelphia, that in consideration of this debt, and in part payment thereof, James Bryan made a bill of sale of the slaves to him, for the sum of $1250; he then sets out various particulars relating to the debts, and says that when the slaves were sold to the Perrys, the money was passed to the credit of Guy Bryan; he insists that he was a purchaser bona fide for a full and valuable...