Tuggle v. Callison

Decision Date01 April 1898
PartiesTUGGLE v. CALLISON.
CourtMissouri Supreme Court

1. Two persons entered into an oral agreement, and afterwards, together with a third person, executed a written contract covering the same matters, but the written contract was inconsistent with the oral agreement. Held, that the rights of the parties would be determined under the terms of the written contract.

2. C. owned land incumbered by two trust deeds, which were about to be foreclosed, and also owed T., whose debt was unsecured. T. and C., who wished to prevent a foreclosure sale, and W., who desired to assist C., agreed that T. should purchase one trust deed, and hold it without foreclosure, and W. would purchase the other. T. furnished money to farm the land, and C. moved upon it and gave it his personal attention. At the same time, C. gave W. an unconditional conveyance of the property. W. purchased one deed of trust, but T. refused to take up the other incumbrance, as he had agreed, whereupon W. purchased and held it, and later foreclosed the other trust deed, which he had purchased under the agreement. T. bought the land at the foreclosure sale, and W. conveyed to T. by deed. Held, that T. did not, by reason of the contracts and transactions, owe such a duty to C. as prevented him from acquiring title for himself at the foreclosure sale.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Ejectment by George Tuggle against William G. Callison. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M. Davis & Son and C. A. Loomis, for appellant. Johnson & Waite and Alexander, Richardson & Allen, for respondent.

WILLIAMS, J.

This is an action of ejectment for 1,381 acres of land. The petition contains the usual averments. The answer sets up an equitable defense, the nature of which will appear from the facts hereinafter stated: Defendant in February, 1893, was the owner of the land sued for, but prior to that time he had given three deeds of trust upon it. The first, dated August 1, 1888, was to secure a note for $6,000 payable to Gilbert & Gay; the second, dated July 27, 1892, was for a note of $2,500 to the Farmers' Exchange Bank; and the third, September 23, 1892, for one of $1,760 to the Union Bank of Trenton. Defendant was also heavily indebted to other parties. He was a customer of the Daviess County Savings Association, of which plaintiff was president, and had borrowed money from it from time to time, until his indebtedness to said association then due amounted to about $5,600. Plaintiff represented said bank in all of its dealings with defendant, and they were upon terms of intimate friendship. A sale of the land under one or more of said deeds of trust above mentioned was about to be made. Plaintiff, as representative of the Daviess County Savings Association, and the defendant were anxious to prevent such sales. Plaintiff was not satisfied that the security held by his bank was sufficient. The debt due it of $5,600 was secured by a chattel mortgage upon some cattle which defendant was feeding. It was believed by both plaintiff and defendant that it would not be advisable to sell the cattle at that time. It was thought by them that, if said cattle should be kept upon the land awhile longer, a larger sum could be realized for them. The parties believed that if the cattle were sold in February, 1893, in the condition in which they then were, they would not bring enough to pay the debt due plaintiff's bank. They were also desirous of preventing a sale of the land. Defendant claims, and so alleges in his answer, that on or about the 23d of February, 1893, plaintiff agreed that his bank would take up the Union Bank debt and the note of the Farmers' Exchange Bank, and would advance the installment of interest due at that time upon the Gilbert & Gay note, and would stop the sale of the land, and would "hold the defendant harmless against said deeds of trust until such time as the lands could be sold for their substantial value, or a new loan negotiated sufficient to pay off and discharge said deeds of trust, and advance from time to time a sum not exceeding $2,000, should it be needed to mature said cattle for market, and complete certain improvements upon said real estate." Defendant asserts that, in consideration of this undertaking upon the part of plaintiff's bank, the defendant promised to give said bank a fourth deed of trust upon the land in controversy, and a chattel mortgage upon 10 head of work horses, to secure said $2,000 to be advanced, and also as additional security for the old indebtedness, and that he also agreed to move with his family upon the land, and to give his personal attention to improving it and caring for said cattle. The arrangement made at this time was verbal, and the parties differ as to its terms. Defendant did on March 1, 1893, execute a deed of trust upon the land, and a chattel mortgage upon the 10 work animals, to secure the old indebtedness due plaintiff's bank, and a note for $2,000, which it is conceded was given to cover advances to be thereafter made. Plaintiff's version is that this was done because 66 head of cattle included in the original chattel mortgage held by his bank were missing, and were not accounted for, and that this additional security was demanded on that account, and he denies the agreement mentioned above. The Daviess County Savings Association did not, at any rate, take up the notes secured by the second and third deeds of trust. Defendant and plaintiff afterwards jointly made several unsuccessful efforts to induce other creditors of defendant to make some arrangement to purchase said notes, and to carry the debts without a sale. Finally defendant's father-in-law, Mr. R. C. Williams, agreed to assist in the matter....

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33 cases
  • Carr v. Barr
    • United States
    • Missouri Supreme Court
    • June 19, 1922
    ... ... still, small voice of duty and conscience ...           ... "'No one' says Williams, J., in Tuggles v ... Callison, 143 Mo. l. c. 527, 45 S.W. 291, 'will be ... permitted to purchase and hold property as his own, where he ... has a duty to perform in relation ... ...
  • Fried v. Marburger
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    ...so do by the deed. Brooker v. Thompson Transit Co., 254 Mo. 125, 162 S.W. 127; Stitt v. Stitt, 205 Mo. 155, 103 S.W. 547; Tuggles v. Callison, 143 Mo. 536, 45 S.W. 291; Hadley Bros.-Uhl Co. v. Scott, 227 Mo.App. 354, 55 1070. OPINION Clark, P.J. Appeal by the two answering defendants from a......
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