61 Mo. 565 | Mo. | 1876
delivered the opinion of the court.
The case presented is this : In November, 1871, the plaintiff owning certain lots in Stoddard’s addition to the city of St. Louis, executed jointly with John Whelan, a promissory note for $2,000 payable three years after date, together with interest notes for $100 each, maturing respectively in 6, 12, 18, 24, 30 and 36 months. The deed of trust which to secure the debt conveyed the lots to the defendant, Reilly, as trustee, was so drawn that in case of default made in the payment of any of the interest notes, etc., then the whole amount of the debt secured should immediately become due and payable, etc., etc.
The note due in six months was paid,, but those due in twelve and eighteen months, were not met at maturity. Thereupon, the defendant, Cupples, who had become the owner of the ñores by transfer from Clements, to whom they were first made payable, delivered the notes and deed of trust to a legal firm for the purpose of having the property properly advertised, and the sale superintended and completed. The advertisement was duly made, but the petition claims that, before the sale the requisite amount to pay ¡be two interest notes, as well as expenses of advertisement, etc., were tendered to the attorney who held the notes, and also to the trustee prior to the sale, bnt were refused, and the property sola to the defendant, Cupples. The circuit court set aside, ¡he sale, and the defendants are appellants here.
1. Some doubt was raised as to whether the attorney to whom the money was offered, was authorized to receive it, but we think his authority was shown with sufficient clearness. And, indeed, it is fairly inferrable from all the attending circumstances. It is true that the firm of which he was a member, was not told in so many words, to collect the notes, but was di
The fact of the .possession of the notes and deed of trust by the attorney, to whose-firm they are proven to have been intrusted, was, presumptively, enough to authorize a payment to the possessor of the notes. (2 Greenl. Ev., § 65 ; Owen vs. Bander, 1 Bos. & Pull., 101; Cone vs. Brown, 15 Rich., 262; Sto. Ag., §§ 98,104; Williams vs. Walker, 2 Sandf. Ch., 325.) And nothing is observed in the evidence to overthrow the ordinary inference dedueible from such possession. And it was certainly competent to make a tender of the money' to the pex-son to whom its payment would be lawful.
2. If there were any informalities attendant on the act of tendering the money to the attorney, they were clearly waived by his refusal to receive the amount proffered unless the principal note was also paid. (Berthold vs. Reyburn, 37 Mo., 586; 2 Pars. Cont., 645; Cole vs. Blake, Peake, 179, cas. cit.; Bull vs. Parker, 2 Dowl. (N. S.) 345; Richardson vs. Jackson, 8 M. & W., 298.)
And the same remarks are applicable to the refusal of the tender by the trustee on the day and place of sale. He was tendered $300 which Curtis had in his hand, who offered
3. It is objected here that, as the holder of the notes. Guppies, was present at the sale, the tender, if otherwise valid, should have been made to him, and could not be made to the trustee. In respect to this, it is sufficient to say that, although the statute as it formerly stood, (R. 0. 1845, § 22) did not admit of the reception of the money by the trustee, yet by subsequent statutes the law has been, it would seem, so changed in this particular, as to make payments to a trustee good. (R. S.,1855, p. 1091, §§ 21, 22 ; Wagn. Stat., 956, §§ 14, 15.) The power of the trustee in this regard, however, is unimportant in consequence of considerations hereafter ad verted to.
4. But it is claimed that the plaintiff has lost the benefit of his tender, by failing to pay the money into court. No objection on this score was made in the court below, and if made, would hardly have been tenable. The proposition is doubtless a correct one when .applied to a formal plea of tender in an action at law brought to recover a debt (2 Greenl. Ev., § 600); but is scarcely applicable to a case of this kind, where no recovery of money is asked on either side, but equitable relief, on the ground that the sale should not have occurred under the circumstances detailed in the petition, and established by the evidence. And this being a proceeding-in equity, will be governed by rules and principles prevalent in those courts where relief of that character is prayed. Among those rules, having application here, is one to be presently mentioned. The true meaning of the rule whose frequency of invocation would seemingly argue a better knowledge of its import, that “ he who seeks equity, must do equity ” is simply this : that where a complainant comes before a court of conscience invoking its. aid, -such aid will not be granted except upon equitable terms. These terms will be imposed
In Quin vs. Brittain, (1 Hoff. Ch’y, 353) the objection was made, that in the bill (which was substantially a bill to redeem) there was no offer to pay the amount due. But it was held that this was not essential, and the reasons given were, that on such a bill no decree would go for the payment of the amount personally; that if the amount found due were not paid, there would be a decree for dismission of the bill, which would operate as a foreclosure. (Bishop of Winchester vs. Paine, 11 Vesey, 194.)
And the same theory evidently dictated the decree before us, which requires the payment within thirty days (after the decree or its affirmance) of the two interest notes, and the one which had meanwhile matured, as well as the costs attending the advertisement and sale of the premises in question. Now, if it was not necessary to offer to pay the amount due in the case of Quin vs. Brittain, supra, which is auala
The foregoing considerations clearly indicate how widely variant equitable is from legal procedure, and induce the belief, that whatever the necessity for bringing money into court on a strictly technical plea of tender, where the action looks alone to a mere pecuniary recovery, such necessity has no existence and consequently furnishes no criterion in an instance like the present.
But laying all points of mere technical tender aside, the decree below may7 well be upheld on the ground of the oppressive conduct of the trustee. He knew the amount of costs due him, and yet, when an amount sufficient to cover them, as well as the matured interest notes, is offered, his lips are sealed, except to refuse the amount offered, unless the principal note was paid. He knew also, if he knew the requirements of his position, that the default in the payment of the interest notes was cured by the sum offered him, and therefore that payment of the $2,000 note should not have been demanded. He was apparently, however, more desirous of pressing than of preventing a sale of the property intrusted to his charge, and seems to have been oblivions to the obli-* gations which evident duty7 imposed, binding him with equal force to the interests of either party. That duty7 clearly required that he should have afforded every reasonable facility in order to have had the matter adjusted, and thus have prevented the pending sale. But I will not enlarge on the duties of trustees ; the theme is threadbare.
The judgment is affirmed.
