148 Mo. App. 75 | Mo. Ct. App. | 1910
This action is in the nature of a suit in chancery and was filed to have defendant Christie enjoined from selling a parcel of ground situate in city block No. 3881 in the city of St. Louis, fronting 225 feet on the east line of Kingshighway and extending eastwardly 150 feet along the north line of Maryland avenue; the depth eastwardly being 180 feet on the north boundary of the lot. The threatened sale was pursuant to a power conferred on Christie as trustee and party of the second part in a deed of trust executed by Louis I. Pinegan, September 29, 1905, to secure Thomas P. Plum ridge of the third part as payee of a note for $2500. When the present action was commenced, defendant Leonidas S. Mitchell was the holder and owner of said note, claiming to have acquired it by purchase from Gardner Bros. & Co., a firm composed of Harry B. Gardner and James P. Gardner, to whom it had been transferred by John S. Carter, assignee of the payee, Plumridge. Mitchell paid Gardner Bros. & Co., $2300 for the note on November 12, 1906, and after it had fallen due on September 29, 1906, it having been given to run one year. When this action commenced the Rookery Realty, Loan, Investment and Building-Company was the owner of the property on which the note was secured, and plaintiff, Joseph Gerardi, Jr., was a stockholder in said company, a contributor to the money paid for the lot, and according to the testimony for plaintiffs, to the fund used to take up the note in suit. The questions on which depended the right of plaintiffs to the relief they asked were, whether the
“St. Louis, Oct. 23, 1906.
“Commonwealth Trust Company,
“Pay to the order of John S. Carter ($2513.34) Twenty five Hundred and Thirteen and 34-100 dollars.
“In payment in full for D. T. on
“Maryland and Kingshighway property.
“(Signed) H. B. Gardner.”
On September 27, 1906, the Gerardis had turned over to Gardner a certificate of deposit on the National Bank of Commerce, for $18,702.79, to pay on the purchase price of the lot. The Gerardis testified Gardner represented he had paid $20,000 out of money of his own deposited in the Commonwealth Trust Company and they gave him the certificate to reimburse him. Gardner used $5000 of the proceeds of the certificate of deposit to pay on the price of the lot that day and placed the remainder to his credit in the Commonwealth Trust Company, where at the time he had a deposit of $6.47. Later he drew various checks on the account for his own purposes, so that on October 8th, when he paid
Though no objection -was made to the joinder of the Rookery Company and Jos. Gerardi, Jr., as plaintiffs, or that the petition was multifarious, we deem it well to remark that reasons differing in some particulars might be advanced for the relief of the two plaintiffs. Both would rely on the contract between the Euking Realty Company and Gardner by which the latter bound himself to pay the note and on Mitchell having purchased it after maturity; but Jos. Gerardi, Jr., asserts he contributed part of the money paid by Gardner on the price of the lot and part of the very fund used to take over the note; whereas the Rookery Company had no part in those transactions, and indeed was not organized until later, in December, when it acquired title to the lot with notice of all prior transactions and facts, particularly that the deed of trust to secure the note in controversy remained unreleased on the record in the office of the recorder of deeds, Moreover, the Rookery Company labors under the disadvantage of having acquired title at a sale by a trustee who had advertised the land -would be sold subject to the deed of trust in question and who executed to the
The judgment is affirmed.