Smith v. Beattie

• Decision Date: 31 August 1874
• Citation: 57 Mo. 281
• Parties: FREDERICK W. SMITH, Appellant, v. ARMSTRONG BEATTIE, THOS. B. WEAKLEY and WM. RIDENBAUGH, Respondents.
• Court: Missouri Supreme Court

57 Mo. 281

FREDERICK W. SMITH, Appellant,

v.ARMSTRONG BEATTIE, THOS. B. WEAKLEY and WM. RIDENBAUGH, Respondents.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Buchanan Circuit Court.

Ben Loan and F. Van Waters, for Appellant.

Allen H. Vories, for Respondents.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in the nature of a bill in equity, to enjoin the sale of certain real estate described in a deed of trust, executed by the plaintiff to one Ridenbaugh, as trustee, to secure the payment of four promissory notes, due to Beattie and Weakley.

It appears that the defendants, Beattie and Weakley, are bankers, and that plaintiff kept an account with them from the year 1864 to 1869, during which time he deposited a large amount of money with them, and drew the same out as he required it. It appears further, that defendants were in the habit of advancing money to him, and granting him accommodations to meet his necessities. Whilst these mutual accounts were thus running between the parties, the defendants purchased and had assigned to them certain judgments, which different parties had obtained against the plaintiff, and after holding them for some time, caused executions to be issued upon them and had the plaintiff's property advertised for sale to procure satisfaction.

In order to prevent a sale of the property, the amount of the several judgments, interests and costs were ascertained and the plaintiff gave four promissory notes for the same falling due at different periods, and the payment was secured by his executing the deed of trust, which is the subject of this suit. After the notes became due, the plaintiff having failed to satisfy them, the trustee duly advertised the property for sale, and the plaintiff applied for an injunction to restrain the trustee from proceeding. A temporary injunction was granted, but on a final hearing it was dissolved, and the plaintiff appealed.

In the petition, as grounds of release, it is alleged that at the time he made the notes and executed the deed of trust, the defendants were indebted to him in a large amount, more than sufficient to pay off and satisfy the judgments for which the same were given; that they had received money belonging to him for which they had not accounted; that when the advertisement for the sale of the property was made, he was in Washington City, attending to some business, and that he was telegraphed to to come home immediately--which he accordingly did; that he arrived only two days before the sale on execution was to take place, but not in time to apply to a court for relief; and that to save his property from a sacrifice, he was induced to give the promissory notes and execute the deed of trust, it being expressly understood between the parties at the time that the trust deed was merely to stand as a security for whatever amount might be due the defendants upon a final adjustment and settlement of accounts between the parties.

The answer of defendants contained a specific and absolute denial of every allegation inserted in the petition.

It is first assigned for error, that the...