Stansbury v. Embrey

• Citation: 158 S.W. 991,128 Tenn. 103
• Parties: STANSBURY et al. v. EMBREY et al.
• Decision Date: 13 June 1913
• Court: Tennessee Supreme Court

158 S.W. 991

128 Tenn. 103

STANSBURY et al. v. EMBREY et al.

Supreme Court of Tennessee.

June 13, 1913

Certiorari to Court of Civil Appeals.

Suit by W. E. Stansbury and others against M. F. Embrey and others. On appeal of plaintiffs the Court of Civil Appeals affirmed a decree of the chancellor sustaining a demurrer to the complaint, and plaintiffs bring certiorari. Affirmed.

Henry Craft, of Memphis, for plaintiffs.

G. J McSpadden, of Memphis, for defendants.

WILLIAMS J.

The bill of complaint was filed to enjoin the defendants from foreclosing a trust deed; a demurrer was interposed by defendants and sustained by the chancellor; an appeal was granted, in the exercise of the court's discretion, and the cause heard by the Court of Civil Appeals, which affirmed the chancellor's decree. The cause is before this court for review on certiorari.

On August 1, 1907, defendant Embrey conveyed to Hal Mitchell colored, a tract of land in the state of Arkansas for a consideration of $12,000, no part of which was paid in cash. Twelve $1,000 notes were executed by the vendee, all made payable "at any bank in Memphis," the first maturing December 15, 1907, and the others on the 15th of each succeeding December until the last was paid. Mitchell at the same time executed a trust deed conveying the land to defendants Bartons as trustees, to secure the payment of these purchase-money notes; and, taking possession, Mitchell paid the notes maturing December 15, 1907, and December 15, 1908, but failed to pay in full the December 15, 1909, note. At the date of the filing of the bill (November 18, 1912) $94.15 of that note remained unpaid, and the notes maturing in 1910 and 1911 were in default as to payment; the total amount thus due at that time being, approximately, $2,900.

The trust deed contained a provision that if default occurred in the payment of any of the notes, then all of the indebtedness, at the election of the holder of the notes should become due for the purpose of foreclosing the lien of the trust deed.

On October 24, 1912, Mitchell conveyed the land to complainant Stansbury for $2,000 cash and the assumption by Stansbury of the payment of the indebtedness due and to fall due; and on the 31st of October Stansbury sought Embrey for the purpose of paying him the amount then past due on the series of notes. Finding that Embrey was absent from Memphis, on a visit to Virginia, he wired Embrey at his temporary address, giving information of his purchase of Mitchell, his desire to pay the past-due notes and stop interest, and asking authority for making payment to the Bartons, trustees. On November 1st Stansbury received a reply from Embrey: "I will be home about fifteen proximo."

This reply not being satisfactory to Stansbury, he on the same day wrote Embrey a letter in which, after acknowledging receipt of the quoted telegram, he expressed his willingness to pay the amount referred to, to any one in Memphis whom Embrey might name, or to send to Embrey in Virginia a certified check for same, and waiving a delivery of the paper until Embrey's return to Memphis. Not receiving a reply, on November 6th Stansbury went to the bank in Memphis where Embrey kept his bank account and deposited therein to Embrey's credit the full amount due on the then matured notes, and promptly notified, and had the bank to notify, Embrey of this fact.

Embrey had not up to this time exercised his option to declare the entire indebtedness due; but on November 9th he wrote Stansbury declining to accept the deposit, and saying that he was also notifying the bank. Complaining of Stansbury's trading with Mitchell without consultation with him (Embrey) he proceeded: "I, therefore, elect to declare the entire land debt due November 15, 1912, and notify you that if not paid on or before that date I will advertise sale of the land under the trust deed."

The rule was laid down in Lee v. Bank, 124 Tenn. 582, 139 S.W. 690, that in order to prevent the acceleration of the maturity of that part of a total indebtedness not matured at the time, a tender of the portion matured under the contract's terms is sufficient, if made after default but before the creditor has exercised his option to declare the entire indebtedness due.

The position taken by complainant Stansbury in the bill of complaint, and on appeal, is that Embrey was obligated, on notice to him of Stansbury's readiness to pay, to make some suitable arrangement by which the notes could be paid in Memphis, failure and refusal to do which entitled Stansbury to pay the money into bank under the place of payment clause embodied in the several notes, "at any bank in Memphis."

It is replied, on the part of Embrey, that the deposit in bank did not constitute a payment.

The rule of law is clearly to the effect that making a note payable at bank--any bank or a particular bank--does not avail to make the bank the agent of the...