Swon v. Stevens

• Citation: 45 S.W. 270,143 Mo. 384
• Parties: Swon v. Stevens, Appellant
• Decision Date: 29 March 1898
• Court: United States State Supreme Court of Missouri

45 S.W. 270

143 Mo. 384

Swon v. Stevens, Appellant

Supreme Court of Missouri, Second Division

March 29, 1898

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded (with directions).

A Finley and R. B. T. Oliver for appellant.

(1) The contract between appellant and respondent to extend the time for the payment of certain debts and for the foreclosing of deeds of trust securing the same for a period of five years was for a valid consideration, legal and binding on the parties thereto. 2 Jones on Mort. [5 Ed.], secs. 1190, 1191; Ins. Co. v. Bonnell, 35 Ohio St. 365; Thompkins v. Thompkins, 21 N.J.Eq. 338; West v. Brison, 99 Mo. 684; Semple v. Atkinson, 64 Mo. 504. (2) Said contract does not come within the purview of the statutes of frauds and perjuries. Its terms do not affect real estate or any interest in real estate in any way. It only affects the debts by extending the time for payment and extending the time for the foreclosing of the deeds of trust securing the same. Turner v. Johnson, 95 Mo. 431; Brown v Bowen, 90 Mo. 184; O'Fallon v. Clopton, 89 Mo. 284; Gillispie v. Stone, 70 Mo. 505. (3) But if within the statutes of frauds and perjuries it was taken out by part performance; and by a memorandum of the contract, in writing, signed by the party to be charged. Simons v. Headlee, 94 Mo. 482; Christensen v. Wooley, 41 Mo.App. 53. (4) At the time of the sale of the lands by the trustee, no part of the debts under the contract was due, and there was no default in any of the conditions of the deeds of trust securing these debts, and for that reason the sale was void, the trustee having no power or authority to sell. Peas v. Iron Co., 49 Mo. 124; 2 Jones on Mort. [5 Ed.], sec. 1175; Koehring v. Muemminghoff, 61 Mo. 403; Baldridge v. Dawson, 39 Mo.App. 527; Franders v. Barstow, 18 Me. 357; Baxter v. Spenser, 33 Mich. 325. (5) The trustee having no power or authority to sell the lands at the time he did, his deed or deeds to purchasers conveyed no title. Long v. Long, 79 Mo. 644; Eitelgeorge v. Bldg. Ass'n, 69 Mo. 52; 2 Jones on Mort. [5 Ed.], sec. 1191. (6) Appellant's presence at the sale and directing how the land should be sold does not estop him when he objected to the sale of the land and so announced at the time publicly. (7) This is an equity case and this court will try it "de novo." Sims v. Lenhardt, 127 Mo. 271; Blount v. Spratt, 113 Mo. 48.

N. D. Thurmond for respondent.

(1) The cause of action in this court is one at law. The defendant in his answer interposes, first, a general denial, and secondly, he sets up an equitable defense in the nature of a confession and avoidance. The two defenses are inconsistent and contradictory. Such a course of procedure is not allowed by the rules governing pleadings under the practice act. Darrett v. Donnelly, 38 Mo. 492, and cases cited. (2) This court will not review the finding of the lower court where no declarations of law are asked or given and there is nothing to show on what theory the court below acted in coming to its conclusions. Parkinson v. Caplinger, 65 Mo. 290; Harrison v. Bartlett, 51 Mo. 170; Wilson v. Railroad, 46 Mo. 36. (3) Judgments will not be disturbed simply because it appears to be against the weight of the evidence. Nor will the Supreme Court pass upon the weight of the evidence, nor determine its credibility where it is conflicting, but will defer to the conclusions of the trial court having the witnesses before it. Rea v. Ferguson, 72 Mo. 225; Methudy v. Ross, 81 Mo. 481; Anderson v. Griffith, 86 Mo. 549. (4) In a case like this it was incumbent on the defendant to prove to the satisfaction of the court, first, the existence of the agreement asserted in the answer; second, that through the contrivance or with the consent of the plaintiff such an agreement deterred others from bidding; third, the actual market value of the land at the date of the sale and that the market value was greater than the price at which the land was sold. Gillispie v. Stone, 70 Mo. 505. (5) An agreement, after the maturity of a note, to extend the time of payment, is no bar to a foreclosure, before the expiration of the period of extension of the mortgage securing the note, the only remedy for violation of the agreement being an action for damages. Ayers v. Hamilton, 30 N.E. 895; Vogel v. Harris, 83 Ind. 494; Williams v. Scott, 83 Ind. 25; Irons v. Woodfill, 32 Ind. 40. (6) Under our statutes all contracts which directly or indirectly limit or tend to limit the time in which any suit or action may be instituted shall be null and void. R. S. 1889, sec. 2394. (7) The equitable defense set up in the answer and the remedy prayed for is an action concerning land, and can not be maintained unless the contract upon which the action is based was in writing and signed by the party to be charged therewith. R. S. 1889, sec. 5186.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action of ejectment for the northwest quarter of the northeast quarter; ten acres, the north part of the southwest quarter of the northeast quarter (said tract extending across said southwest fourth northeast quarter); and thirty acres, the south part of the northwest quarter of the southeast quarter (north line parallel with south line of said northwest quarter of the southeast quarter), all in section 5, township 49, range 8, Callaway county. Ouster was laid March 2, 1895. The answer was as follows:

"Now on this day comes the defendant in the above entitled cause and for answer to plaintiff's petition filed herein denies each and every allegation in said petition, except as hereinafter specifically admitted to be true. Defendant admits that he was and is in the possession of and is now occupying the lands and premises described in plaintiff's petition.

"Defendant for other and for further answer to plaintiff's petition states that on the twentieth day of October, 1881, he was owner in fee and in possession of the following described land lying and being in Callaway county and State of Missouri, to wit: W. 1-2 of lots one and two of the N.W. qr of section 4, also the N. E. qr., and the north 1-2 of S. E qr., and the S. E. qr. of the N.W. qr. of section 5, all in Tp. 49, range 8. That on the said last named date defendant made, executed and delivered his certain negotiable promissory note for $ 3,500, payable to the order of James Rickenbaugh, due and payable one year after date and bearing interest from date at the rate of eight per cent, compoundable; that to secure the payment of said promissory note, defendant and his wife, Harriet Stevens, executed and delivered their certain deed of trust of even date with said note, upon all the real estate above described to R. A. Crews, as trustee, to secure said note. Defendant further states that payments were made on said promissory note by him and said note was kept alive and continued a subsisting obligation. On the 24th day of September, 1894, there was due on said note, including principal and interest, about the sum of $ 5,800. That on the last named date defendant was insolvent and was indebted to plaintiff, as security on a promissory note held by plaintiff and payable to his order, for the sum of $ 346.66, and that on the day of August, 1894, one James D. Dillard obtained a judgment against this defendant in the circuit court of this (Callaway) county for the sum of $ 398.10, and that said judgment was unpaid on said date. Defendant avers that plaintiff came to him and represented to and told this defendant that he (plaintiff) would take up the Rickenbaugh note, and deeds of trust securing the same, and pay off the Dillard judgment mentioned above, if defendant would execute and deliver to plaintiff his promissory note for $ 756.21 (being the amount of the Dillard judgment and costs and the sum of defendant's indebtedness to plaintiff as security, as mentioned above), and secure the payment of said note for $ 756.21, by a second deed of trust from defendant and his wife, Harriet Stevens, upon all the lands and real estate heretofore mentioned; that he (plaintiff) would extend the time for the payment of the Rickenbaugh note and the deed of trust given to secure the same, and that he (plaintiff) would extend the time for the payment of the note for $ 756.21 and the deed of trust to secure the same, for a period of five years from the 24th day of September, 1894. Defendant states that believing and relying on the statements and representations of plaintiff, and having perfect faith and full confidence in the honor, honesty and integrity of plaintiff and believing that if plaintiff bought said promissory note from said Rickenbaugh and the said Dillard judgment, and if the indebtedness from defendant to plaintiff was secured by a second deed of trust from defendant and his wife upon all of the above described lands, the time for paying off said Rickenbaugh promissory note and the note for $ 756.21, so given, would be extended for a period of five years from the 24th day of September, 1894, and said lands would not be sold under said deeds of trust, or either of them, for a period of five years from the 24th day of September, 1894; that defendant, relying on said statements and promises made by plaintiff, and the fact that plaintiff did take up the Rickenbaugh note and pay off the Dillard judgment, was induced by said statements, acts and representations of plaintiff to execute and deliver his promissory note for $ 756.21 on the 24th day of September, 1894, due five years after date and payable to plaintiff, or his order, and did on the same day secure said note by executing and delivering a second deed of trust from defendant and his wife, Harriet Stevens, upon all the lands described...