Waples v. Jones

• Decision Date: 31 May 1876
• Citation: 62 Mo. 440
• Parties: EDWARD B. WAPLES, Appellant, v. JASPER JONES, Respondent.
• Court: Missouri Supreme Court

62 Mo. 440

EDWARD B. WAPLES, Appellant,

v.JASPER JONES, Respondent.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Livingston Circuit Court.

C. H. Mansur, for Appellant.

I. The two notes and the deed of trust are to be construed as one instrument, and all taken together form but one contract. (Brownlee vs. Arnold, 60 Mo., 79, and cases cited; Cornell vs. Todd, 2 Den., 123, and authorities cited.)

II. The payer in the note, and he alone, had the right to determine whether the interest must be paid annually, or whether he would permit it to run as a part of the principal, bearing the same rate of interest. (2 Pars. Cont., 5 ed., 506, 507, and note m.; Dann vs. Spurrier, 3 B. & P., 399.)

H. C. Samuel, for Respondent.

I. It was at the option of the makers to pay the interest annually, or have it compounded and bear the same rate of interest as the principal, as provided in the notes and deed of trust. (Smith vs. Sanborn, 11 John., 59; 2 Pars Cont., 2 ed., 170, 171.)

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding originally instituted under sections 38 and 39 of the landlord and tenant act (Wagn. Stat., 883, 884). before a justice of the peace, to recover the possession of a tract of land. In the justice's court the plaintiff had judgment; but on an appeal and trial in the circuit court, the judgment was for defendant.

The plaintiff claims title under a sale made by a trustee by virtue of a deed of trust; and the only question decided by the court below, and which is now here for revision, was, that the sale was prematurely made, and that no title passed.

From the facts in the case it appears that Charles E. Jones and Elizabeth, his wife, in March, 1874, executed to Joseph A. Cooper, as trustee, their deed of trust, conveying to him the land in controversy, to secure the payment of two promissory notes therein described, of even date with the deed, and payable to one John H. Ware. Charles E. Jones rented the land to the defendant, after the making of the deed of trust, but before the sale thereunder, and this proceeding was against him as Charles E.'s tenant.

The case depends wholly upon the construction to be given to the following provision of the deed of trust, as to when the payments were due which would authorize a sale: “Whereas the said parties of the first part have this day made and executed and delivered to the said party of the third part their promissory notes of even date herewith, by which they promise to pay to the said John H. Ware or order, for value received, two thousand one hundred and twenty dollars, three years after date, one note for the sum of two thousand dollars, payable at the banking house of the Peoples' Saving Bank at Chillicothe, with ten per cent. interest per annum from date, interest due and to be paid annually, and if not paid annually to be compounded and bear the same rate of interest as the principal. The other note for the sum of one hundred and twenty dollars, payable at the said Peoples' Saving Bank, both due in three years from this date, and bearing ten per cent. interest per annum, interest to be due and payable annually, and if not paid annually to be compounded and bear the same rate of interest as the principal. * * * * Now, therefore, if the said parties of the first part, or any one of them, shall well and truly pay off and discharge the debt and interest expressed in said notes and every part thereof, when the same becomes due and payable according to the true tenor, date and effect of...