Wheeler & Wilson Mfg. Co. v. Howard
| Decision Date | 25 September 1886 |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | WHEELER & WILSON MANUF'G CO. v. HOWARD. [1] |
Farish & Jones, for plaintiff.
M. W Huff, for defendant.
In this case there are demurrers to the second and third counts of the petition. The question rests on these facts: In the spring of 1885 the defendant executed three notes, due respectively, in one, two, and three years. At the same time to secure those notes, he executed a deed of trust and a mortgage. In one of those instruments it was stipulated that upon default in payment of either of the notes, the entire indebtedness should immediately become due; in the other, that, upon default in the payment of either note, all should, at the option of the holder, become due. The note due in the spring of 1886 was not paid, and the holder of the three, who was the payee of the three, gave notice of his option, and declared that all were due, and brought this action at law upon the three notes, setting up one in each count; in the second and third counts averring these stipulations in the deed of trust and in the mortgage, and the exercise by him of his option, and notice thereof to the maker.
The demurrer runs to these last two counts, and it is insisted that the effect of such a stipulation is to render the later nates due simply for the purpose of a foreclosure of the deed of trust and mortgage; that, if such foreclosure is had, the entire debt is to be considered due, in order that the proceeds of the sale may be distributed immediately, and not retained in the hands of the trustee until such time as the later notes become due, and that it does not have the effect of an absolute stipulation, making these later notes due for all purposes.
In the case of Noell v. Gaines, 68 Mo. 649, the question was presented to the supreme court of this state, and by it it was held that such stipulation was absolute and general; that it made all the notes due, and due for all purposes. It is true, there is a dissenting opinion of great vigor, written by Judge HOUGH, in which he shows, I think satisfactorily, that the opinion of the majority is a departure from the prior rulings of that court. But that ruling, made in 1878, has not been disturbed. So far, therefore, as this court is bound to follow in such a question the ruling of the supreme court, we must hold that these three notes became due, and due for all purposes.
Independent of that decision, it is in accord with my own views of what the law is. It is elementary that where two instruments...
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