60 Mo. 79 | Mo. | 1875
Lead Opinion
delivered the opinion of the court.
On the sixth day of December, 1871, the defendant purchased of one Roberts a certain lot of ground in the town of Brookfield, for tlie sum of $3500, paying $1380 in cash, and executing four promissory notes for the residiie, due in one, two, three and four years from said date. To secure these notes a deed of trust of even date therewith was made on the land sold, which deed contained the express condition, that ■the notes should not become due, nor the deed of trust be foreclosed, until the fourth note should mature, viz: the sixth day of December, 1875. The first note, after its maturity, was assigned to plaintiff, who purchased it with full knowledge of all the circumstances attendant upon its execution.
I. The notes and deed of trust, having been contemporaneously executed, and both relating to the same subject matter, viz : the indebtedness which had accrued, can properly be read together, and regarded as one instrument, so far as con-, cerns the purpose of the present inquiry: (2 Pars. Cont., 553 ; Hunt vs. Frost, 4 Cush., 54; Hanford vs. Rogers, 11 Barb., 18; Gammon vs. Freeman, 31 Me., 243, and cases cited.)
II. It cannot be successfully disputed that it was perfectly competent for the parties to the contract to so arrange the matter between themselves, that none of the notes should fall due until such time as the last one became by its terms payable. Nor can it be doubted, after inspection of both the notes and deed of trust, that this was the intention which prompted the insertion of the clhuse in the latter instrument referred to in the answer, nor that the agreement in this regard, had for its basis a valid and sufficient consideration.
III. As the plaintiff purchased the note under the circumstances detailed in the answer, he occupied no better position than the original payee would, had he been plaintiff in the present 'action.
The judgment will be reversed and the cause remanded;
Concurrence Opinion
I concur in the opinion that the note and trust deed may be read together for some purposes, but express no opinion as to how far the trust deed qualifies the time of payment of the note in this case, this not being a pi’oceeding to enforce the trust deed.