40 Mo. 114 | Mo. | 1867
delivered the opinion of the court.
This case was before the court on an appeal from the St. Louis Land Court and determined at the March term, 1864 • — 35 Mo. 95. Judgment in favor of the defendants had been entered up in the Land Court upon issue joined in de-' murrer, and it was reversed and remanded for further trial. The defendants answered and a trial was then had upon the merits. The judgment being for the defendants, it is
A witness named Peter Poster was introduced in behalf of the plaintiffs, and all the facts proved are to be gathered from his testimony. No testimony was offered by the defendants. The case is very fully stated in the opinion of Judge Bates and need not be repeated here. Poster stated, that (to use his own language), “ at the instance of Mrs. Clarkson, I went to see Luney about the note and deed of trust (the subject matter of this litigation) ; I understood from her that he was about to sell the property over her head, and that I should try to save her. I asked him about the matter, and he said that he did hold the note and that he wanted his money. I asked him how much it was, as I would raise the money to save the property to the widow, offering to pay part down and the balance within a week or ten days. He then answered me that he was about to make a trade ; that if. he did, he would want the whole money, and if not, he would not want any; that he coul d not positively tell for a week. I then agreed with him that he should let me know whether he wanted it or not, and if he did, I would see that he got it, as I would myself pay it to him ; and he then agreed that he would do nothing under the deed of trust until he let me know. I'then saw Mrs. Clarkson and told her of it.”
There could have been no pretence on the part of Luney that this was a mere intermeddling by Poster on his own account and to accomplish some purpose for his own benefit..
Luney himself being the purchaser of the property at the sale, is of course affected with full knowledge of all facts in the case. His bid at the sale was $1,050, and the witness says “ the property was safely worth some $1,500.” We conclude therefore that the allegations contained in the petition were sufficiently supported by the testimony.
An effort was made to prove a tender of the amount due upon the note, with the costs and expenses of the trust, made previous to and again at the time of commencing the suit. The evidence is not sufficient for that purpose and therefore no notice can be taken of that point. The judgment of the Land Court in dissolving the temporary injunction and assessing the damages therefor, as well as the decree for the defendants upon the petition, must therefore be reversed.
Upon a careful examination of the record in the case, there seems to be no reason for remanding this cause for a further trial, but such judgment will be given here as ought to have been entered up in the court below. It is therefore ordered that the sale of the property mentioned in the petition be set aside and held for naught; that the said Creely, as trustee, be perpetually restrained and enjoined from executing a deed to the same to Luney, or the performance of any other act or thing under said deed, and that the said plaintiffs be permitted to redeem the said property by paying the amount of the note held by Luney with ten per cent, interest thereon from the time of its transfer to him; and the cause is remanded to the St. Louis Circuit Court, that, in conformity with this decree, it take an account between the parties.