13 Mo. 395 | Mo. | 1850
Prom the above statement it will be seen that both complainant and defendant contend, that the facts in testimony support each one’s own side of this controversy. It becomes the duty of this court, therefore, to look carefully into the evidence and to determine for which side, the same preponderates. I shall not take anjr notice of the insufficiency of the advertisement: it was very awkwardly drawn up : fora considerable portion of the deed of trust, was copied into it and published : which might well have been left out. I am not willing to reverse the decree of the court below by reason of any superfluous matter in the advertisement. It contains enough to give notice of what was going to be done in the premises, and indeed it appears from the evidence that it was known in the neighborhood in which the land was situated, that the same was to be sold, and that the day and place were known, previous to the sale’.s taking place.
The answer of Musick is responsive to material facts alleged in the bill. This answer denies all fraudulent representations on his part, to procure any advantage of Lovering. It shows a desire to indulge Lovering, and also an indisposition on the part of Musick to purchase the land.
It was natural for Musick to wish to make his debt, and I am induced to think from all the evidence in the case that there was nothing wrong, nothing fraudulent or unfair in the means taken to enforce the payment of this money. The land was sold at the court-house door in the city of St. Louis, on 22nd day of February, and was sold within the hours fixed by law for sales of real estate under execution. True it is, that the account given by Lovering of this transaction, and of Musick’s promises and representations to-him, does not agree with Musick’s statement; and if Musick and Lovering must, the one or the other, be considered by me as the less worthy of credence, I must be candid, and assign to Mr. Lovering that unenviable position.
Mr. Belt, the auctioneer, and witness in this case, satisfies me of the correctness of Musiek’s answer. He states, that Musick gave him instructions, not to bid off the. land to him if any other person would bid for it the amount of his debt. This proves Musick’s assertion, that he did not want the land, that all he wanted was his money.
We find Musick after the sale and purchase of the land by him, still giving-time to Lovering to redeem the land, by paying the debt and interest. Lover-ing still neglects or is still unable to redeem it, and Musick at length determines to hold the land and have nothing more to do with Lovering about it. There is nothing illegal or inequitable in this. He surely was not bound to extend this indulgence unlimitedly — or until Lovering should wish it no longer. I deem it unnecessary to recite the evidence in this case. Some of the witnesses for the complainant appear under a shade upon their credibility; and I am unwilling to overthrow the answer of the defendant, Musick, by any such testimony.
(a) See Roundtree v. Gordon, 8 Mo. R. 19; Gamble v. Johnson, 9 Mo. R. 597; Johnson v. McGruder, 15 Mo. R. 365; Laberge v. Chauvin, 2 Mo. R. 179; Bartlett v. Glasscock, 4 Mo. R. 62.