Wood v. Motley

83 Mo. App. 97 | Mo. Ct. App. | 1900

BOND, J.

This suit is to restrain the foreclosure of a deed of trust given by plaintiffs to secure a note for $390 executed by them to defendant Motley. The transaction out of which the note arose was, to wit: In March, 1893, the son of plaintiffs bought 160 acres of land from defendant, Motley, agreeing to pay therefor, $400 in cash and to give his note, secured by a deed of trust on the land, for the remaining $1,400. In consummating this trade defendant Motley agreed with the purchaser, in lieu of the cash payment, to take $10 in cash from him, and a note executed by his parents for $390,. secured by a deed of trust on a tract of land owned by the makers. Some payments were made by the purchaser upon his own, and some payments were made by him on the separate note signed by his parents. Thereafter he reconveyed the land which he had purchased to the original vendor, receiving for such reconveyance the surrender of his own note for $1,400, and the payment of taxes on the land for the year 1896, and an acknowledgment of k further credit of $100 on the note given by his parents. Upon a disclosure of these facts in the evidence adduced by plaintiffs, the court dissolved a temporary injunction theretofore granted by it, adjudged that plaintiffs were not entitled to- a cancellation and delivery up of their note for $390, and dismissed their suit, from which decree they appealed to this court.

The theory of the learned counsel for appellants is that plaintiffs by the execution of their note for the cash payment which their son had agreed to make upon his land trade, became both as -to him and as to his vendor mere, sureties and entitled as such to be discharged from any further obligation on their said note, by reason of the fact that the vendor of tire land, without their knowledge or consent took a reconveyance from the purchaser instead of enforcing a foreclosure of the deed of trust which had been given to secure the purchaser’s note for the deferred payment. The objection to this contention is, that the plaintiffs gave their separate note' as principal debtors for the cash payment due from their son to his vendor and secured this independent note by a deed of trust on a different tract of land which belonged to them in their own right. By this express contract on their part to become principal debtors to defendant Motley the plaintiffs waived any and all rights which might otherwise have enured' to them as sureties under the foregoing facts. In the language of the supreme court: “One who is in reality a surety may contract as a principal. He may waive the rights which the law throws around a surety, for such a waiver has nothing in it offensive to the law; and the surety does waive such rights when he in terms contracts and agrees to be bound as principal.” Beers v. Wolf, 116 Mo. l. c. 183; McMillan v. Parkell, 64 Mo. 286; Picot v. Signiago, 22 Mo. 587. Having established their relationship as principal debtors to defendant Motley by the express written contract to- that effect,the plaintiffs were no longer entitled to be treated by him on the footing of sureties, nor to adduce oral evidence in contradiction of their written -contract. Bank v. Terry, 67 Mo. App. loc. cit. 17, and cases cited. The learned circuit judge evidently applied these principles -of law to -the disposition of this case when he refused the relief prayed for and dismissed the suit. The decree is manifestly correct, and is affirmed.

All concur.