144 Mo. 19 | Mo. | 1898
This contest grows out of the sale of real estate under a deed of trust. Plaintiff, who purchased part of the land after the execution of said deed and subject thereto, filed his petition, seeking to set aside the trustee’s sale made thereunder, so far as it affected his property, and for permission to redeem his part of the land.
The facts, upon which the rights of the parties depend, are that, on the thirteenth of April, 1893, one Woodson Wantland purchased this tract of land, but at his request the deed was, made to S. E. Want-land. A note, signed by both of these parties for $1,650, was given for a portion of the purchase money. This note bore eight per cent interest, payable annually, and the principal was to become due three years after date. It was secured by a deed of trust upon the real
Some question has been made by appellant about the order of time in which these sales were made. This might be controlling under some circumstances, but it does not become material to determine that matter under the theory upon which'we will dispose of the case.
Defendants Givens and Ray, on the third of April, 1895, purchased the $1,650 note and caused it to be indorsed to their codefendant, Mary Ray. One year’s interest amounting to $132 became due April 13, 1895. Plaintiff, to prevent the sale under the deed of trust, tendered this interest to defendants, at Gallatin, on the twelfth of April, 1895, the day before it became due. Defendants had the note present when the tender was made but refused'to receive the money. They gave plaintiff no reason for their refusal. The
Defendants afterward, on the sixth of May, 1895, being then the real owners of the mortgage debt, purchased from S. E. Wantland the equity of redemption in his part of the land covered by the deed of trust. The circuit court found the fact to be, and so entered in its decree, that, when defendants, made this purchase, they “assumed that part of the debt evidenced by said note which he, the said S. E. Wantland, had assumed and agreed to pay by arrangement between himself and plaintiff and one Chas. E. Scribner, that is to say, the said S. E. Wantland the sum of $825 and interest, the said Chas. E. Scribner the sum of $375 and interest and the plaintiff the sum of $450 and interest.” The appellants complain of this finding of facts, and, as this is an equity ease, we have carefully examined the evidence, and see no reason to reject the- conclusion upon this point of the learned judge, who tried the case below.
Defendants caused all the land embraced in the deed of trust to be sold by the trustee on the thirteenth of May, 1895. Plaintiff, on the morning of the sale and before it was made, tendered to defendants his part of the debt secured by the deed of trust under the arrangement aforesaid, and also the interest and costs,
The decree rendered by the circuit court recites that plaintiff had paid into court for defendants the full amount of principal and interest due from him upon the $l;650 note secured by the deed of trust, in accordance with the agreement for the division of the indebtedness mentioned above, and orders that the trustee’s sale as to plaintiff’s land be held for naught, and that his property be forever released from said deed of trust and be declared free from any lien or incumbrance on account thereof. The defendants have appealed from this decree.
It is claimed that defendants wez-e under no obligation to receive, before it was due, the interest tendered them; that, as it was not offered at the time and place “nominated in the bond,” the right existed, under the deed of trust, to make sale of the land. It is further urged that the court below was not justified in setting aside the sale on the ground that all the land was sold as one tract and without subdividing it. An examination of the decree rendered will show that the circuit court did not base its judgment upon either of these grounds. The objection to the sale cuts deeper than any informality in the manner of conducting it or irregularity in the immediate proceedings by which it was brought about.
The parties having the title to the different parcels of land subject to the deed of trust, agreed, at the time of their respective purchases, upon a division of the indebtedness secured thereby, and the amount that
After this arrangement defendant could not be permitted to subject the entire land to sale for the payment of the whole debt, a part of which they had agreed should not be chargeable upon plaintiff’s land. The effect of their undertaking was that plaintiff’s land should be exonerated from all of the debt except his proportionate part as agreed upon by the interested parties. Defendants assumed S. E. Wantland’s contract as to the division of the debt. The decree of the circuit court was in accordance with this view and is affirmed.