Speer v. Graham

• Decision Date: 03 December 1917
• Docket Number: No. 18760.,18760.
• Citation: 199 S.W. 139
• Parties: SPEER v. GRAHAM et al.
• Court: Missouri Supreme Court

199 S.W. 139

SPEER v. GRAHAM et al.

No. 18760.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from Circuit Court, Holt County; Arch B. Davis, Judge.

Suit by John Speer against Martin Graham and others, and Home Bank of Forest City and others. From the judgment, plaintiff appeals, as does Martin Graham and others. Cause transferred to Kansas City Court of Appeals.

Frank Petree, of Oregon, Mo., for appellant Speer. E. E. Richards, of Oregon, Mo., and H. B. Williams, of Craig, for appellants Graham. R. B. Bridgeman and S. F. O'Fallon, both of Oregon, Mo., for respondent Home Bank.

BOND, J.

I. Plaintiff sues to enjoin the Home Bank of Forest City and W. H. Richards, trustee, from selling certain real estate under a deed of trust, until said bank shall foreclose a certain chattel mortgage securing a note for $1,000 held by it, or shall transfer said note to plaintiff upon payment of the amount thereof.

The controversy arose upon these facts: On February 21, 1913, plaintiff, John Speer, sold to Martin Graham 120 acres of land in Holt county, Mo., upon a basis of $18,000 as purchase money. At the time of the trade, one C. D. Duke was a beneficiary of a mortgage on said land for $8,000. In payment of the purchase price, Martin Graham assumed this mortgage and executed three promissory notes, the first of which was for the sum of $1,000, with 8 per cent. interest and due one year after date, the other two for $2,400 each with 7 per cent. interest and maturing six and seven years after date, respectively. The balance of the purchase money was paid by a conveyance of 240 acres of Texas land. It having been agreed that the first note should be cashable, Martin Graham, the maker, as additional security for the payment of it, gave a chattel mortgage on certain personal property. All the notes were secured by deed of trust on the land wherein defendant W. H. Richards was named as trustee. The purchaser Graham took possession, farmed the land for a year, and made certain improvements. Thereafter he sold and conveyed the land to O. W. Simerly, who assumed the entire indebtedness charged on it, amounting to $13,800. When this sale was made, none of the promissory notes given by Graham to plaintiff, Speer, were due or payable.

In May, 1914, the note for $1,000 having matured, defendant the Home Bank, which had discounted it upon an indorsement by plaintiff, Speer, without recourse, advertised the land for sale under the deed of trust. On the day of the sale, it was ascertained that the published notice of sale incorrectly stated the page of the record on which the deed of trust was recorded, but the trustee proceeded with the sale, and plaintiff, Speer, being the highest bidder, the land was struck off to him for the sum of $1,200. The trustee declined to make a deed on account of the inaccuracy of the advertisement. Plaintiff, Speer, was not called upon and did not pay the amount of his bid. Thereupon the defendant bank again advertised the land for sale under the deed of trust. Pending this sale, plaintiff, Speer, brought the present action and secured a temporary injunction. As grounds therefor, he alleged in his petition that, prior to the time of the second advertisement of sale of the land under the deed of...