73 Mo. 492 | Mo. | 1881
The testimony both with regard to the consummation of the agreement and its terms is confiicting. John Nichols, one of the creditors who attended the meeting of creditors, at which it is alleged the agreement was entered into, testified that Louthan’s proposition was to give Bush one, two, three •and four years, on his executing a deed of trust to secure this indebtedness, on all his property, and that Bush proposed to get his wife’s relinquishment of dower in his lands. Other witnesses mention only the land, but do not say that other property was not also to be embraced in the deed of trust; but, without detailing the evidence, it is sufficient to say that it is impossible from the testimony to ascertain what precise property was to be conveyed. The meeting of creditors was on the 24th day of October, and the next day Stillwell wrote to Louthan, who was selected by the creditors to effect the proposed arrangement between them and Bush, stating the amount of his debt against Bush, and in that letter said : “ Let me repeat: The consent of all the creditors (save and except Mr. Smith, the judgment creditor, whom Mr. Bush must satisfy) is vitai to the success of the undertaking;” and again: “ The property should be free, with dower released, and all included in deed of trust.” This letter contains in substance the agreement as understood by several of plaintiffs’ witnesses and as testified to by Stillwell himself. If not, it fully notified Louthan and the other creditors that it was Stillwell’s understanding of the proposed arrangement, and was given the day after the creditors’ meeting, and they had still time to abandon the scheme and make such other terms with Bush as they and he might deem proper. If all the creditors were to be made beneficiaries in the deed of trust, then, of course, Stillwell cannot be compelled to accept and complete an agreement by which only a portion of them was provided for. Or, if all the property of Bush, real and personal, was to be included in the deed of trust,
That the alleged agreement was violated on the part of Bush, is shown by Louthan’s letter to Stillwell & Easton of date November 25th, 1873, in which he says: “Mr. Nichols called on you yesterday with the proposition that Mrs. Bush, with her husband, would sign the deed of trust as agreed upon by all Ms creditors, by them paying her $2,000 at the termination of four years if the property had to be sold, each signing an agreement to pay pro rata according to the amount of claim, which I am satisfied is the best that can be done. Tf tMs meets your approbation, meet here next Monday.” I have italicised those portions of the foregoing extract which bear particularly upon the question under consideration. If the proposition made by Mrs. Bush mentioned in this letter was already embraced in the agreement made on the 24th day of October, it bad already on plaintiff’s theory, met Stillwell’s approbation, but not only this letter but all the evidence shows that it was no part of the alleged agreement that Mrs. Bush was to be paid by the creditors $2,000 for her dower. This letter further shows that it was Louthan’s understanding of the agreement that all the creditors were to become parties to-it. “ If the contract be not actually concluded and certain in all its parts, as, if the matter still rests to any extent in treaty, or is uncertain or undefined in any particular, a court of equity will not interfere by way of specific performance.” Story Eq., 1 vol., § 736. And if the party seeking a specific performance has disregarded the reciprocal obligations on his part, equity will not interfere at his instance. Ib. But that no agreement was concluded by the creditors and Bush at their meeting on the 24th day of October, and that Root, who testified that there was, and Nichols and Louthan, did not so understand it, is shown by the fact that in November, after the agreement is alleged
■ If, however, it was clearly established that the agreement as alleged was made, and that Stillwell was a party to it, there is an insurmountable obstacle in the way to the relief sought by plaintiff. By the alleged agreement, the parties stipulated for the performance of an act by Bush and themselves violative of the bankrupt law. He was in fact, as the evidence shows, on the 28th day of March, 1874, for the very act of executing the deed of trust in question, adjudged a bankrupt by the district court of the United States for the eastern district of Missouri, on the petition of Jas. B. Dudley and John S. Bush, two of his creditors, not parties to the said deed of trust. Appellant’s counsel contends that the State courts have no jurisdiction to enforce this act of congress. The State courts cannot administer the bankrupt law or enforce its penalties. The enforcement and administration' of that law has been confided to the Federal courts, but it is an act of the congress of the United States made “in pursuance of the constitution of the United States,” and “ is the
