88 Mo. App. 577 | Mo. Ct. App. | 1901
The sale of the land by the original mortgagor, Williams, to the Scott Investment Company, and the assumption of the incumbrance by the latter, converted said company into the principal debtor with reference to the incumbrance, and the defendant into a surety. Wayman v. Jones, 58 Mo. App. 313; Nelson v. Brown, 140 Mo. 580; Pratt v. Conway, 148 Mo. 291. Timothy Regan, who then held the note and knew all about the arrangement, was bound thereafter to recognize said parties in those capacities. Nelson v. Brown, supra.
We must be controlled by the finding of the lower court that there was no agreement for an extension of time of payment, either between Williams and the,Scott Investment Company, or between the latter and Timothy Regan, at the time the company purchased the land. When the extension was entered on the note, the entire principal and one year’s interest were due. The accrued interest and $1,000 of the principal were paid. It is the law in this State, that a contract like that, for the extension of the time of payment, is without consideration and not binding, so that the creditor may, if he chooses, immediately press for payment despite his agreement to extend; that therefore a surety is not released by such a transaction between the maker and payee. Brown v. Kirk, 20 Mo. App. 524; Owings v. McKenzie, 133 Mo. 323. In some jurisdictions the rule is otherwise where there is not simply an agreement to forbear proceedings to collect, but a formal executed stipulation to postpone the maturity of the instrument. Banson v. Phipps, 87 Texas l. c. 580, and many cases cited. The decisions of the court to which we owe fealty must be followed and we approve the ruling of the learned trial judge that the extension did not discharge the defendant as surety.
II. In reply to the defense that the statute of limitations had run against the note before this action was begun, plain
Whether or not the statute ceased to run in favor of the defendant when the payments were made by the subsequent grantees, depends, then, on whether he can be considered a joint promisor with them. Undoubtedly he was not. They were not parties to the note when it was made and only became obligated to pay it by subsequent contracts between themselves and the maker, Williams. Their responsibility, far from resting
III. It is insisted by the appellant, in the second place, that the case is taken out of the statute by the credit Groffe, the trustee, put on the note, of the proceeds arising from the foreclosure sale of the land. The trustee, it is claimed, was the agent of both the mortgagor and mortgagee, and for certain purposes he was; not for that one, however. It was his duty to protect the interests of both parties in the performance of his office and he was liable to either for damages resulting from his misfeasance. Sherwood v. Saxton, 63 Mo. 78. We do nor find in the deed of trust any clause authorizing the trustee to enter a credit on the note of the proceeds of sale in case of foreclosure, but such an act was in the scope of his legal authority. To say that he was empowered by Williams to make such a credit on the latter’s behalf, or that it was contemplated or ex
The credit made by the trustee, instead of being the result
The question we are considering has been several times passed on by the courts and we believe, with one exception, the judgment was that such an application by the trustee or mortgagee of the money obtained by sale did not stop the statute. It was so held by this court in Leach v. Asher, 20 Mo. App. 656. The Kansas City Court of Appeals ruled differently in Bender v. Markle, 37 Mo. App. 234, without noticing the previous case. These opposing decisions were commented on by the Supreme Court of Nebraska in a controversy as to-the effect of such a credit by the trustee in a deed of trust on lands in Missouri. The proposition is ably discussed in that opinion and the view of this court adopted on the ground, “that such payment was not a voluntary one on the part of Carr (the mortgagor) but one made in invitum and by operation of law.” Moffitt v. Carr, 48 Neb. 403. -To the same purport is the impressive voice of the Supreme Court of Massachusetts in a recent case. The opinion says: “The ground upon which a part payment is held to take a case out of the statute is, that such payment is a voluntary admission by the debtor that the debt is then due, which raises a new promise by implication to pay it or the balance. To have this effect, it must be such an acknowledgment as reasonably leads to the inference that the debtor intended to renew his promise of payment. Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, 7 Gray, 387; Richardson v. Thomas, 13 Gray, 381.
In the case at bar, the plaintiff executed a mortgage in which he gave to the mortgagee a power to sell the estate and to appropriate the proceeds to the payment of the mortgage debt. But this can not fairly be construed as an authority to the mortgagee to make a new promise on behalf of the mortgagor
The decisions have gone quite far enough towards defeating the purpose of the limitation law. Woonsocket v. Ballou, 1 L. R. A. 555. The inhospitable reception accorded by the courts to the two great legislative policies embodied in the statutes of limitations and of frauds has often provoked regret,- and a disposition more favorable to them has supervened. We have no inclination to encroach further on the limitation law or create fresh exceptions to it and rule, therefore, that the credir. made by Goffe, does not impair the defense of the statute ana affirm the judgment.