65 Mo. App. 348 | Mo. Ct. App. | 1896
The petition alleges that defendant on the twenty-seventh of September, 1892, executed a mortgage to plaintiff to secure ten promissory notes of
“I, Richárd W. Pfeninghausen, hereby agree with James W. Shearer that, in case the net proceeds of the fruit farm near Mountain View, Howell county, Missouri, which I have this day deeded to said James W. Shearer, from any. special disaster, such as the partial failure of a crop, etc., will not meet the payment of any particular year according to notes given this day, I will not demand payment in full of said notes, but accept' the net proceeds of said farm and stock and give credit for the same on said note- for a particular year, and permit the balance to stand over to the next year, and be added to the note due the next year, provided good intent is shown and a purpose to properly care for the farm and property.
“I also further agree and assume to pay at once a mortgage of $500 due the estate of Sarah Hulst, April 1, 1892, with interest of $77 due thereon up to October 15 (about) at ten per cent per annum as stated. Said*350 mortgage is on the southwest one fourth.of the southwest one fourth of section 27, township 15, range 29, in Yolusia county, deeded to me this day by said James W. Shearer.
^R. W. Peeninghausen. “Birmingham, Ala., Sept. 27, 1892.”
Defendant further answered that plaintiff- had not paid the $500 note and interest referred to in said contract, and that each year since the giving of said notes there had been a failure of crops on the farm mortgaged, so that defendant had realized nothing therefrom, whereby he claimed plaintiff was not entitled to the relief sought in this action.
Plaintiff replied that the contract set up in the answer was not his act.
Courts of law. and equity exercise concurrent jurisdiction in the foreclosure of mortgages. Hannah v. Davis, 112 Mo. 608. This cause was tried by the court sitting as a jury. The only evidence adduced bore upon the issues as to the execution of the contract set up in the answer and the time of its execution. For plaintiff the evidence on these points tended to show that a contract verbally different from the one pleaded was made by plaintiff on the evening of the day when the parties hereto made the exchange of lands referred to in said contract. For defendant there was evidence that the contract was made as it appears supra, and was entered into on the evening of the twenty-seventh of September, 1892, to define the rights of the parties under the mortgage. The court refused a declaration of law to the effect that the plaintiff was entitled to recover under the pleadings and evidence, and found for defendant. From a judgment rendered in accordance plaintiff appeals to this court.
This judgment can not be sustained. Under the condition expressed in. the mortgage defendant was
Waiving the question as to the sufficiency of the consideration of said contract, and looking only to its terms, it is apparent there is nothing in the obligations therein assumed by plaintiff to prevent the present action. First, as to the agreement therein by plaintiff to pay the Hulst estate $500 and interest to October 15. This covenant was clearly independent of the covenant of defendant to pay the notes secured in the mortgage. The representative of the Hulst estate might have enforced the former covenant independently of the performance by defendant of his obligation as mortgagor. Likewise plaintiff was entitled to enforce the payment of the mortgage debt irrespective of the performance by plaintiff of'the covenant .to pay the Hulst estate. It is only when one covenant is the consideration of another, that, the latter can be termed a dependent covenant. The only way the defendant in
The next defense set up in the answer is that there was a failure of crops, whereby defendant received nothing from the farm or stock up to the time of the bringing of this suit, wherefore plaintiff was bound under the above contract to refrain from collecting the present note. Not a particle of evidence was adduced by defendant tending to show that there had been any failure in the yield of the farm or stock up to the time of the bringing of this suit. This averment in his answer was, therefore, wholly unsupported by the proof. If the agreement, made by plaintiff in the contract pleaded by defendant, to accept the net proceeds of the farm and stock in payment of the notes was available at all by defendant, it could only have been so upon proof of a deficiency in the products of the farm and stock to pay the note in suit, and could, of course, have been set up only as against so much of the note as was left unpaid after the application thereto of whatever had been realized on the farm and from the stock prior to the maturity of the note. As no
Our conclusion is, therefore, that there was no merit in the defenses set up in the answer, and, as the judgment rendered by the court was unsustained by the facts and contrary to the law, it will be reversed and the cause remanded. It is so ordered.