author: GANTT, P. J.

text:
    J. W. DUNCAN, Appellant, v. HOME CO-OPERATIVE COMPANY, W. B. SULLIVAN and RAYMOND PICQUET.
    Division Two,

      June 8, 1909.

    1. MORTGAGE: Valid Debt: Cancellation: Trustee Owner of Debt. A deed of trust, given to secure a part of the purchase price of real estate, will not be cancelled and foreclosure denied altogether, simply because the trustee has become the owner of the indebtedness, nor will foreclosure be postponed so long as the cestui que trust remains trustee.
    2. -: Redemption: Reasonable Time: Six Months. Where the foreclosure sale under the deed of trust was properly set aside because the trustee who had become the owner of the mortgage contract himself purchased at the sale through a mere figurehead, a reasonable time should be given the mortgagor to redeem; and what is a reasonable time is to be determined by the chancellor, and unless there is an abuse of his discretion the judgment will not be reversed because a longer time was not granted. There is no rule that compels a court of equity to give at least six months in which to redeem. [Distinguishing Stephenson v. Kilpatrick, 166 Mo. 1. c. 270.]
    3. -: -: Payment by Installment: Tender of All Due. Where the deed of trust provided for payment by monthly installments and that all should become due upon default in any one of them, and the owner of the indebtedness, who was also the trustee, concealed from the mortgagor all information as to the foreclosure sale, and at the sale bought in the property himself through a figurehead, the court should not only set the sale aside and permit the mortgagor to redeem, but should permit him to redeem upon the payment, within a reasonable .time, of the installments due, and the decree should further recite that there should be no foreclosure so long as subsequent installments are paid as they become due.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Eeversed and remanded (with directions).

      J. W. Duncan, pro se, and James P. Gilmore and G. W. Stubbs for appellant.
    (1) The action of the trial court in setting aside the sale as fraudulent was correct, and no complaint is or can he made with reference to that part of the decree. 28 Am. and Eng. Ency. Law (2 Ed.), 819; Polliham v. Reveley, 181 Mo. 622; Goode v. Comfort, 39 Mo. 325; Powers v. Kueckhoff, 41 Mo. 430'; Graham v. King, 50 Mo. 24; Bales v. Jacobs, 62 Mo. 135; Stoffel v. Schroeder, 62 Mo. 149; Cassady v. Wallace, 102 Mo. 581; Holdsworth v. Shannon, 113 Mo. 520; Harlin v. Nation, 126 Mo. 103; Gambel v. Pignero, 62 Mo. 240; Long v. Long, 79 Mo. 644; Tatum v. Holliday, 59 Mo. 423. (2) The court in its decree should have cancelled the deed of trust, or should have so shaped its decree, in any event, that a foreclosure could not be enforced so long as Sullivan was the trustee and owner of the indebtedness as disclosed by the record in the case at bar. 28 Am. and Eng. Ency. Law (2 Ed.), 764; Gambel v. Pignero, 62 Mo. 240; Long v. Long, 79 Mo. 644; McNear v. Williamson, 166 Mo. 358; Morrison v. Juden, 145 Mo.'282. (3) Inasmuch as plaintiff was out of employment and a large amount had been paid in monthly installments, no default had occurred, and the court should have so found and held in its decree and set the sale aside with that finding, and prevented any further attempt to sell the property under the deed of trust. 28 Am. and Eng. Ency. Law (2 Ed.), 779; Eitelgorge v. Bailey, 82 Mo. 639; Whelan v. Reilly, 61 Mo. 565; Wheless v. St. Louis, 90 Mo. App. 107; Watson v. Gross, 112 Mo. App. 615; McCollum v. Ins. Co., 61 Mo. App. 352; Moberly v. Trenton, 181 Mo. 637; Taylor v. Buzard, 114 Mo. App. 622. (4) The answers of the defendants were utterly bad pleadings (and especially that of defendant W. B. Sullivan, the real defendant in the case), and the allegations of plaintiff’s petition stood confessed, and the trial court should have so treated said allegations, and given a full decree setting aside the sale and cancelling the deed of trust, and as this court may try the case de novo, it should now so treat the pleadings and make a finding and enter a decree in accordance therewith. Long v. Long, 79 Mo. 644; Snyder v. Free, 114 Mo. 360; Young v. Schofield, 132 Mo. 650; Boles v. Bennington, 136 Mo. 522; Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Blount v. Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo. 294. (5) In any event, plaintiff should have been permitted and only required, to pay the amount of the past due monthly payments falling due on August 10, 1904, and each month thereafter until the rendition of the decree. 28 Am. and Eng.' Ency. Law (2 Ed.), 779; Philips v. Bailey, 82 Mo. 639'; Whelan v. Reilly, 61 Mo. 565. (6) Even if the trial court can be held right in foreclosing the trust deed, a longer time than sixty days should have been given for payment, and the time therein given should not have been in any event less than six months. Stephenson v. Kilpatrick, 166 Mo. 262.
   GANTT, P. J.

This is a suit brought by the-plaintiff against the defendants in the court below for the purpose of setting aside a trustee’s sale, and to have the deed of trust declared null and void, and for such other relief as equity might require.

The situation grew out of three contracts originally between John W. P. Allin and the - Home CoOperative Company, a copartnership organized by certain parties of Kansas City, Missouri, for the purpose of securing homes for its various contract-holders. The Home Co-Operative Company was a copartnership, created by articles of agreement on May 9, 1901. The articles of copartnership provided that the chief place of business should be Kansas City, Missouri, but that branch and local offices might be had at any place that would facilitate the business of the company, and contracts made with persons anywhere in the United States. There were provisions in the articles of copartnership whereby a partner might retire and new members be substituted for others. It was, however, agreed in the articles of copartnership that any new member admitted to the partnership should agree and bind himself to become liable for all obligations of the company, the same as though he had been a member, from the beginning, and any one who became a member by purchasing the interest of any member should likewise bind himself to and for all obligations of the company at the time of becoming a member of the company.

It was also provided in the articles that seven members should constitute a quorum for the transaction of business.

The scheme of business contemplated that persons could purchase contracts from the Home Co-Operative Company, and by the payments therein provided for, become entitled, upon what is designated as the maturity of the contract, to have a home purchased for him by the company. The contract-holder was to pay a certain amount in proportion to the number of contracts he had.

The character of the contract is fully set forth in the record.

In May, 1901, John W. P. Allin took three of these contracts from the Home Co-Operative Company, numbered ten, eleven and twelve. These contracts were between the Home Co-Operative Company and John W. P. Allin, and with all other parties who made like contracts of co-operation with the parties. The scope of the contract, therefore, was such that it was not only between the Home Co-Operative Company and the party to the particular contract, but was likewise with all other parties holding similar contracts. The contract further provided that whenever there should be accumulated fifty dollars from the payment of the sums of $1 on the contract, and like contracts made subsequent thereto, the particular contract having the lowest number should be deemed to have matured, and the owner of the contract should be entitled to an installment sum of $50, to be applied upon a home for such contract-holder until the sum of $1,000 should be paid.

The contracts further provided that they might be assigned in writing, and also that if the party to the contract, or his assignee, was unable to pay by reason of loss of employment, a forfeiture should not be declared before the time of his last payment equal to the time of payments already made on the advancements.

Allin’s contracts matured some time in December, 1902; the property in question was purchased on-his behalf. A purchase contract was issued to him, and prior to the time of the execution of the trust deed involved in this suit, the contract took the place of a •deed of trust and was held in escrow. On April 10,1903, Allin made, executed and delivered a deed of trust conveying the property-to W. B. Sullivan, as trustee for the Home Co-Operative Company, said deed of trust taking the place of the arrangement theretofore existing. The deed of trust made the terms of the contract hereinbefore referred to a part thereof, and provided for a monthly installment payment of $16.05 on or before the tenth day of each month until paid. The deed of trust also provided that in case of death, inability, refusal to act, or absence from Jackson county, Missouri, of the trustee, W. B. Sullivan, then the sheriff of Jackson county, Missouri, should become Ms successor.

The deed of trust contains the provision that if the grantor should be unable to pay his monthly installments by loss of employment, a forfeiture of the agreement should not be declared before the time after the last payment equal to the time of payments paid on the obligation secured thereby. It appears from the record that prior to the time of the execution of the deed of trust involved in this suit, the original constituency of the Home Co-Operative Company sold out to the said W. B. Sullivan and two other parties from St. Louis. The deed of trust contained a provision that if Allin failed to pay the installments for thirty days after one became due, then all other payments at the option of the holder of the note and deed of trust should become due and payable and be .forfeited and the lot sold by the trustee or in his absence by the sheriff.

It further appears from the record, however, as testified to by Sullivan himself in a deposition which was introduced at the trial of the case, that Sullivan became, or attempted to become, the absolute owner of the business of the Home Co-Operative Company in January, 1903. After this purchase of property by Sullivan, the deed of trust involved in this case was given, making Sullivan the trustee.

On June 22, 1903, the plaintiff in this suit, John W. Duncan, purchased this lot from Allin by a general warranty deed," subject to the deed of trust, which Duncan assumed and agreed to pay. The deed of trust as made by Allin was to secure the payment of $3,200 less $315 then to the credit of Allin as payments on the property. It also appears that in June, 1903, the plaintiff, Duncan, paid upon the indebtedness the further sum of $200, and thereafter, in July, 1904, the further sum of $32.10.

For a time after Sullivan purchased the property he maintained an office in Kansas City as originally contemplated by the articles of copartnership of the Home Co-Operative Company. Subsequent to the payment made by Duncan in July, 1904, and prior to default in the installment payments, Sullivan discontinued any office of the Home Co-Operative Company or of himself, in Kansas City, Missouri. Prior to the time of discontinuing the office in Kansas City, there was some evidence that the Home Co-Operative Company had been refused the use of the mails. It appears that there had been some conversation between the plaintiff and Mr. Steele, who had represented Sullivan and the Home Co-Operative Company as an attorney in the examination of abstracts, with a view to a possible foreclosure of the deed, as the plaintiff at that time desired to sell the property, and could not obtain the consent of his wife to join in the deed conveying the equity, and had been advised by an attorney that this method might be followed. This plan was abandoned. It also appears that the plaintiff sought on one or two occasions to ascertain when Sullivan would be in town. The record shows that Sullivan did not leave any directions as to how he could be reached, or as to how payments could be made, but no effort was made by plaintiff to make said payments or to find Sullivan’s address. Sullivan made arrangements with Mr. Steele to publish the notice of sale and the record shows that while the publication was running the plaintiff had some conversation with Steele with reference to the property and with reference to Sullivan’s coming to Kansas City, but nothing was said to him by Steele as to the intended foreclosure.

The plaintiff testified he had made arrangements by which a sale of the property could be consummated, and visited Mr. Steele with reference to the same, and then for the first time learned that the property had been published and sold. ’ The property was sold as a matter of form to Raymond Picquet, Who was not present and was evidently acting on behalf of Sullivan, as found by the court.

Prior to the sale, the plaintiff on about November 1,1904, saw Mr. Steele and inquired when Mr. Sullivan would be in Kansas City. According to plaintiff, this was at the time when the notice was running, and Mr. Steele did not advise plaintiff of the fact, though the property was advertised, but Steele denied that such was the fact.

The evidence tended to show that the plaintiff was never advised where payments could be made to Sullivan after' the offices were discontinued at Kansas City, Missouri, but on the other hand, he wrote Sullivan and made no effort to pay the defaulted installments.

Plaintiff, after discovering the sale, promptly brought the suit at bar to set the same aside, charging, among other things,, conspiracy between Sullivan and Picquet to cheat and defraud the plaintiff out of his rights in the property; that no forfeiture had been made, and that they well knew that there was no forfeiture; that the Home Co-Operative Company was a fraudulent concern, and was denied the use of the mails, and that the plaintiff could not pay at St. Louis, even if he had been required to do so by the terms of the contract; that Picquet was not an innocent purchaser of said property, but purchased it really, for W. B. Sullivan himself; that Sullivan was a resident of -St. Louis, Missouri, at the time of the alleged forfeiture, and was not competent to act as trustee. These are some of the salient allegations of the petition.

The petition asked in the prayer that the sale be set aside, and that the trust deed be cancelled, and for such further relief as justice and equity might require. The answer of W. B. Sullivan, also designated as the answer of the Home Co-Operative Company, denied each and every allegation set out in plaintiff’s petition, except as herein admitted. It then admits that Allin was the owner of the three separate contracts entered into by and between Allin and the Home Co-Operative Company; admitted that Allin was the owner of the property as set out in plaintiff’s petition, the entire purchase price of which was paid by defendant company, and that A11 in gave the deed of trust involved to secure the balance due from said Allin; and by reason of default in all monthly payments since July, 1904, the trustee did on the 23d of November, 1904, sell the property, averring' that the sale was made at public vendue to the highest bidder», and in strict compliance with the statutes of Missouri,. and prayed to be dismissed.

The main contest was between plaintiff and Sullivan as Picquet was a mere figurehead in the whole.-transaction.

The evidence showed, and the court so found, that’ Allin had paid on the amount of the indebtedness $315, and that the plaintiff had paid $232.10. The indebtedness bore no interest. The evidence tended to show that the property was worth $4,000 or more, and the court found it to be worth $4,00-0-. At the sale the property was struck off for $1,005.

The court, after finding the ownership of the property in Allin and Duncan, as herein briefly stated, and the amounts paid by Allin and Duncan, also made a finding in its decree that the monthly payments falling due on August 10, 1904, and thereafter, were not paid upon the said indebtedness, and thereby a default occurred as found in its decree. The court also found that prior to the sale of said real estate by said W. B. Sullivan as trustee,- said Sullivan was the owner, or one of the owners of the property of the Home CoOperative Company, and as such was the beneficiary therein, and that said real estate was in fact purchased' by and for the benefit and to the use of said W. B.. Sullivan, and the name of said Raymond Picquet was used solely and only for the purpose of giving color or right and authority for the sale and conveyance so made. The court in its decree set aside the sale as fraudulent, and then further decreed that the plaintiff" be permitted to redeem the premises above described from the lien of the deed of trust by paying to said W. B. Sullivan within sixty days from and after the date of the decree, the sum of $2,637.90, and that if that sum should not be paid within the time the property should be sold by the sheriff of Jackson county at public sale, after twenty days’ notice. Then followed the usual disposition of the proceeds of the .sale.

The plaintiff, being dissatisfied with the decree, filed a motion for a new trial, as did also the defendants, but the latter was withdrawn. The court overruled the motion for new trial, and the plaintiff brings the suit here by appeal.

I. No appeal was taken by defendants from the decree of the circuit court setting aside the sale and deed made by defendant Sullivan to Picquet, and to that extent the decree must stand. It is obvious, v© think, that the circuit court set aside the sale and deed on the ground that Sullivan, the trustee, was a member of the copartnership to which Allin’s debt was originally made which plaintiff assumed, and made the sale to himself secretly, though using Picquet’s name as purchaser and grantee in the deed. It is absolutely certain that Picquet was not present when the sale was made and knew nothing of it and did not pay any part of the bid. Sullivan merely took this method of having the title eventually conveyed to himself and the court properly held the sale was fraudulent.

But plaintiff was not satisfied with the decree and insists that the circuit court should have cancelled the deed of trust altogether or decreed that no foreclosure could be enforced so long as Sullivan was the trustee and owner of the indebtedness. By reference to the statement and testimony, no doubt can be entertained That the copartnership, known as the Home Co-Opera'Kve Company, furnished the money and purchased the real estate covered by the deed of trust and conveyed or caused the same to be conveyed to Allin and that Allin owed the firm this debt for the purchase money and that Allin sold the lot to plaintiff and plaintiff assumed and agreed to pay this debt. Whatever Sullivan’s relation to the Home Co-Operative Company as between himself and its contract-holders, it affords no ground for plaintiff’s effort to repudiate his debt' and appropriate this property free of the claims of' Sullivan or the creditors of the Home Cooperative Company. It is no less plaintiff’s debt because Sullivan may be and had been decreed simply the agent or trustee of the fund for the benefit of the creditors and contract-holders of the Home Co-operative Company; on the contrary, it furnishes a stronger reason why this asset of the company should be preserved. No fraud was perpetrated on plaintiff. He bought the lot, obtained his title and undertook and agreed to pay this encumbrance. He had not paid his installments and the holder of the debt was entitled to have it foreclosed. At that time Sullivan appears to have held the legal title to the indebtedness and while, as the circuit court properly found, his sale was irregular and set aside, there was absolutely no pretence that plaintiff did not owe the balance of the mortgage debt or that he complied with his obligation either legally or equitably. He came into court and asked to be allowed to redeem and the circuit court gave him relief by decreeing that the sale and deed made by Sullivan be set aside and annulled on condition that plaintiff pay the balance of said debt to Sullivan in sixty days and if plaintiff should not pay the same at that time, then the premises should be sold by the sheriff after due and legal notice, and,, out of the proceeds, the sheriff should first pay the costs of this cause and the sale, and next, the debt to Sullivan, and the remainder to plaintiff. That the decree was just and equitable, in so far as it imposed as the price •of the redemption the payment of the balance of the debt dne by plaintiff, it seems to ns there can be no two opinions among honest men. The only questions which can arise are those raised by counsel for plaintiff, that the court should have allowed a longer time to redeem and that the court should not have required the payment of the whole balance but the sum of the installments past due at the date of the decree.

As to the time for redemption, it was said by •Judge Sherwood in Stephenson v. Kilpatrick, 166 Mo. 1. c. 270: “It is not improper to add that courts of •equity usually give six months in which to redeem and that it is not customary to give so short a time .as thirty days in which to redeem.” This is far from holding that in every case, irrespective of conditions, a court of equity must give at least six months in which to redeem. In our opinion there is no such fixed time but it must be left to the wise discretion of the chancellor who tries the case and unless that discretion is abused it will furnish no ground for a reversal of the judgment. The failure to give more than sixty days was not urged as a ground for new trial. The case was not tried on that theory, and the judgment should not be disturbed on that ground.

II. We are thus brought to the further contention that the court should have only required plaintiff to pay the amount of the past due monthly payments falling due on August 10, 1904, and each month thereafter until the rendition of the decree. In support of this contention we are cited to Whelan v. Reilly, 61 Mo. 565, and Philips v. Bailey, 82 Mo. 639. In the first of these cases, it was held by the court that where by the terms of a deed of trust, on failure to pay the interest notes as they matured, the whole amount of principal and interest forthwith became due and the trustee was empowered to sell and for default in payment of a portion of the interest notes, he proceeds to sell, the debtor may, on proof of tender to the trustee, before sale, of the amount then due together with costs accrued, have the sale set aside in equity, and the refusal of the trustee to receive the money may amount to oppressive conduct which will authorize a decree for that reason alone, regardless of the question of tender, on payment of the notes matured at the date of the decree and proper costs. In Philips v. Bailey, 82 Mo. 639, the debtor tendered the trustee on the day of the sale, and before the sale, the interest due and the costs and expenses of advertisement and the commission, all that was claimed except the principal of the debt and attorney’s fee provided for in the deed of trust. Upon this showing, the sale was set aside, this court, citing and approving Whelan v. Reilly, supra. In each of those cases the tender of the interest due and the costs accrued was held to be the essence of the equity' for setting aside the sale. In this case no tender was made before the sale, but the plaintiff’s evidence tended to prove he was entirely ignorant of any intention to sell at that time; that he had never seen the advertisement of the sale and consequently he had no opportunity to make the tender of the accrued installments, and for aught we know this may have been one of the grounds upon-which the circuit court set aside the sale.

In his bill to redeem, the plaintiff alleges that “ever since he has had knowledge of the sale of said real estate by defendant, Sullivan, as aforesaid, plaintiff has been willing and ready and hereby offers to pay upon the debt secured by said deed of trust whatever amount was or is due thereon under the terms of said contract and plaintiff now here offers to- pay thereon whatever amount this court shall find to be due and direct to be paid -thereon and asks if any amount shall be found due upon said debt secured by said deed of trust that he may be permitted to redeem said real estate from said sale.” While it is competent for parties to make their own contracts and while, notwithstanding the onerous conditions which those who loan money sometimes impose, sales will be upheld where there is no fraud or imposition practiced, yet courts of equity have ever taken a broad and humane view of the obligations of a mortgagor and have leaned against the harsh remedies which are often invoked against him and are inclined to protect him, so long as they can 'justly do so, and without impairing the obligation of his contract with the mortgagee. According to the strict letter of the deed of trust, plaintiff has forfeited his right to pay the balance of the debt in installments, but the- fraudulent conduct of Sullivan entitled him to have the sale set aside. When the court decreed the sale was fraudulent and should be set asidé, then it seems to us that every demand of justice and equity would have been satisfied by the further decree that the past due installments should, within a reasonable time fixed by the court, be paid, and if so, then Sullivan could not foreclose the deed of trust so long as plaintiff should thereafter meet and pay the installments as they fall due.

This view of the equities of the case was urged upon the circuit court in the petition and was renewed in the motion for a rehearing, and in our opinion, the court erred in denying this prayer of the petition, and its decree should be modified to that extent.

Before this cause was tried in the circuit court, it appears from the intervening petition of Louis Schubert, a creditor and contract-holder of said Home Co-Operative Company, that on the 3d day of July, 1905, one Herman H. Wehrs, also a contract-holder, filed his petition in the circuit court of St. Louis county, in the nature of a general creditor’s bill, in behalf of himself and all other creditors and contract-holders against said company and William B. Sullivan, for the purpose of winding up said company and having its assets declared a trust fund for its contract-holders and creditors, and on said date an interlocutory decree was made and entered in accordance with the prayer of the petition, and Francis Tillman' was appointed receiver of all the assets and property of said company, wheresoever situated, and said Sullivan, his agents and servants and the agents and servants of said company were ordered to make all necessary assignments and transfers of all said assets to said Tillman as receiver; and afterwards on October 3, 1905, a final decree was entered in the said cause confirming said receivership in all respects; that after-wards said Tillman was removed and William Watkins "was appointed receiver in his stead; that Sullivan appealed from the order removing Tillman and this court affirmed the judgment of the circuit court removing Tillman and appointing Watkins, and this court is now asked to permit said Watkins to intervene in this cause, for the purpose of protecting the assets of said company, and being now fully advised it is ordered that said William Watkins be and he is hereby made a party to this suit and permitted to represent the rights of the said company in this suit, which have heretofore been represented by said Sullivan, and he is substituted as receiver of said company to all the rights of said Home Co-Operative Company and said William E. Sullivan herein and empowered to collect and receive any and all moneys and property due said company from plaintiff by virtue of said deed of trust, and to take all proper steps to collect the same.

The decree of the circuit court is reversed and the cause remanded with directions to the circuit4 court to modify its decree by taking an account of all the installments due from plaintiff on said debt up to the .time of taking said account, and then decree that if plaintiff shall’by a day and time fixed by the court, no.t less than sixty days, pay said delinquent installments to said receiver Watkins, the said deed of trust shall not.be foreclosed so long as plaintiff shall thereafter comply with the terms of said deed of trust and pay the said installments as they fall due, but if plaintiff shall fail and neglect or refuse to pay said installments from time to time as they shall become due and payable, then the said receiver may request and require the sheriff of Jackson county to sell said lot and real estate at public vendue as provided in said deed of trust and out of the proceeds satisfy first the costs of said sale and next the balance of said mortgage debt and then pay the balance to plaintiff.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    HUGH C. NEVIUS, Appellant, v. GEORGE T. MOORE.
    Division Two,
    June 8, 1909.
    1. EQUITY: Instructions. It is wholly immaterial, so far as equity counts in a petition are concerned, whether instructions asked were correct declarations of law, or whether they were properly or improperly refused.
    2. -: Deference to Chancellor: Questions of Fact. The ap.pellate court in a suit in equity will review the testimony and draw its own conclusions as to the rights of the parties. But where the testimony is conflicting and disputed questions of fact are to be settled, the appellate court will defer in a large measure as to such disputed questions, to the findings of the chancellor, who has a superior advantage to observe the conduct of the witnesses and weigh their testimony.
    3. NOTE: Indorser’s Liability: Limitations. If the notes themselves were barred by the ten-year Statute of Limitations at the time suit was brought against the indorser, he is not liable.
    4. -: -: Presentation and Demand: Knowledge. The payee of a note who indorses and delivers it to a purchaser before maturity, is not liable as indorser for its payment un less at its maturity i^ is presented to the maker, demand of payment made, and notice of refusal of payment given to the indorser. And the fact that'the indorser notified the maker that the note was due is not such a presentation, demand and notice as the law requires.
    5. -: -: -: Waiver: Promise to Pay. In order to hold a payee of a note liable as indorser, on the ground that a letter written by him, in which he asks the holder to bear with him a little longer and assures him that he will do all in his power “to settle” at the earliest possible moment, constituted a waiver of presentation, demand and notice of refusal to pay, it is essential that the indorser at the time of writing the letter. had knowledge of all the facts and knew that the note had not been presented to the maker, demand of payment made, and that the maker had refused to pay. The indorser’s liability to pay is only conditional, and in order to convert it into an absolute independent agreement, it is the duty of the party relying upon a waiver to prove that it was made with full knowledge of the facts.
    6. -: -: -: —-: Must Be Pleaded. Where plaintiff in his petition, suing defendant as indorser of a note, alleges presentation at maturity to the maker, demand of payment and notice to the indorser of the maker’s refusal to pay, he cannot prove the indorser waived such presentation, demand and notice, in the absence of proper averments of waiver. And an allegation that “the defendant in the year 1898 admitted in writing his liability to plaintiff for the amount of said note and promised to pay the same, but has failed to do so,” does not tender the issue of waiver; and even if it did, the petition would be duplicitous, in the face of the prior charge that presentation and demand were made.
    7. PLEDGE: Reciprocal Obligations. The obligations and duties of pledgor and pledgee are mutual and reciprocal. The pledgor must be ready and willing and offer to pay the indebtedness before demanding a return of the collateral. The pledgee when he demands payment of the original debt must be ready to return and deliver to the pledgor the collateral left with him as security.

      S. -: No Offer to Pay: Prayer for an Accounting. Unless the pledgor, in his petition or otherwise, offers to pay his debt to the pledgee, to whom he delivered as collateral security certain notes secured by a deed of trust, which was foreclosed by the pledgee and the property deeded to him, he cannot demand that the title be decreed out of the pledgee into him. And a request in the pledgor’s petition that an accountiag be taken between bim and tbe pledgee, and that bis claim against tbe pledgee be set off against tbe notes made by bim to tbe pledgee and that be bave judgment against tbe pledgee for tbe balance, is not an offer to pay or a tender to redeem, where tbe facts sbow that tbe pledgee was not indebted to tbe pledgor, at tbe institution of tbe suit.
    Appeal from Jackson Circuit Court. — Eon.. A. F. Evans, Judge.
    Affirmed.
    J. C. Rosenberger for appellant.
    (1) The finding upon counts one and two should have been in favor of plaintiff. 1. Moore absolutely disregarded the terms of the letter transmitting the pledged notes, which letter constitutes the contract of pledge and which provides that the pledge of the notes should be only temporary and that the notes should be held only until foreclosure could be made, title taken in Nevius’ name and deed of trust given by him. For Moore to proceed to foreclose and take title in his own name and hold it as security was a gross violation of the pledge contract and presents a case for equitable relief similar to that given in Hagan v. Bank, 182 Mo. 319. Construction Co. v. Hayes, 191 Mo. 250; Richardson v. Ashby, 132 Mo. 238; Bank v. Richardson, 156 Mo. 270'. 2. His taking of the title to these lots in his own name, his failure to call upon Nevius for the foreclosure expenses, his failure to demand payment of Nevius’ notes, his failure to ask Nevius to execute the deeds of trust, and his own statement that upon Nevius’ failure to pay his notes on their maturity, without, however, any demand being made he treated the notes as his own, show conclusively that after Moore had got into his own possession these notes bearing his endorsements, the evidence of his liability, and had got the title to these lots tucked away in his own name, his ulterior object had been accomplished. 1 Pom., Eq. Jur. (3 Ed.), sec. 186. 3. No tender should be required of plaintiff as a condition to maintaining this action. In giving plaintiff the remedy he seeks in this case there can be no legit-mate contention that plaintiff should have tendered to defendant the sum of $800 advanced to him at the 'time that the McClellan notes were pledged or that plaintiff has waived his rights upon the indorsements by pledging the notes with Moore. Moore was never a lawful pledgee ■of these notes. Nevius never supposed that he was ¡borrowing money of Moore, his debtor, and never supposed he was pledging notes to him. Jones on Pledges, sec. 564; Mead v. Bunn, 32 N. T. 275-. 4. Even if Moore had not gotten the notes by. fraud and had been the lawful pledgee thereof, there would have been no obligation on the part of Nevius to offer to redeem them by paying Moore the $800, for the further reason that the law does not require one to do a useless act. It being admitted by defendant that by his own misconduct he was unable to produce the notes alleged to have been pledged it would have been a useless and an idle tíeremony for plaintiff to have offered to redeem them. Richardson v. Ashby, 132 Mo. 238. (2) Defendant should not be allowed to escape his liability as endorser of the notes by reason of the' alleged failure, as it is claimed, of plaintiff to show ■due presentment, demand and notice of dishonor of the notes. 1. It was both alleged and proved that the notes when due were presented to and payment •demanded of the makers and the proof showed by defendant’s -own admission that this had been done by defendant himself. 2. Even if there had been no such proof, the showing made of Moore’s written, unconditional promises to pay the notes and recognition of his liability, dispenses with all further proof of demand, notice, etc. Mense v. Osborn, 5 Mo. 544; Dorsey v. Watson, 14 Mo. 59; Harness v. Daviess County, 46 Mo. 357; Falkner v. Falkner, 73 Mo. 327; Daniel, Neg. Inst., 1157.

      R. E. Ball for respondent.
    (1) In any event there could he no action here, except as on lost instruments. This, of course, is aside from whether defendant is really liable on these notes or on any of them. The undisputed proof discloses a case of a suit on lost instruments in which plaintiff has not complied with the statute. His pleadings and the proof do not correspond. He alleges that all of these notes are in existence, and that defendant has them. He does not plead as upon a lost instrument, or assert the loss of the notes, as the fact was, as a reason for their non-production. He fails utterly to show what he asserts. He makes no proffer of the bond without which, under the statute, he could have no judgment. R. S. 1899, secs. 642, 743. (2) Plaintiff is not the owner of the McClellan notes. As to these four notes, there is no possible doubt that plaintiff could not maintain any action on them either at law or in equity, against the defendant, or against anybody else. If he had not waited for eleven or twelve years before attempting to take any action on these notes, he could not, after pledging and reassigning them to defendant, whether they were for a loan from defendant personally or for a loan from a third party through plaintiff, as the fact was, maintain any suit even against the maker and primary debtor until he redeemed and took up the notes. He is not the owner or holder of the notes. He reassigned and pledged them as collateral for a debt which he has ignored, on which he has paid no interest, and which he has neither offered to pay nor shown any disposition to pay. Unless it is perfectly immaterial whether plaintiff is the owner and holder of the paper, he cannot maintain an action on it, and certainly cannot against the pledgee. (3). The notes sued on were all barred by the Statute of Limitations at the time the action was begun. (4) There is no evidence of any waiver on defendant’s part, either of the Statute of Limitations, or of the failure to make demand, and protest on the notes, and notice of their dishonor. .The law is quite clear that there could be no waiver, no matter if defendant’s letter of February 10, 1898, is properly construed by counsel for plaintiff (which we deny), to the effect that that letter contained within the meaning of the law an unconditional promise to pay these notes. It must be true under the law, before .any such effect could be given to the letter: (a) That it was an unconditional promise to pay these notes; and (b) That defendant knew when he made that promise that he was released. Long v. Dismer, 71 Mo. 453; Dyas v. Hanson, 14 Mo. App. 363; Thresher Co. v. Pierce, 74 Mo. App. 676. (5) The only possible point on which plaintiff could recover on any of the notes would be that by defendant’s letter of February 10, 1898, defendant waived the Statute of Limitations, and waived demand and protest of the' notes, and this alleged waiver plaintiff does not plead. Pier v. Heinrichoffen, 52 Mo. 333. (6) Defendant’s letter of February 10,1898, does not contain an unconditional promise to pay, and is improperly so construed by plaintiff’s counsel. Borradile v. Lowe, 4 Taunt. 93; Kelly v. Brown, 5 Cray 110; Parks v. Smith, 155 Mass. 33; Thornton v. Wynn, 25 U. S. 187.
   FOX, J.

This appeal is from a judgment of the Jackson Circuit Court in favor of defendant.

On June 26, 1902, the appellant, Nevius, filed his petition against the respondent, Moore, in the circuit court of Jackson county, Missouri. Summons was issued and served on Moore the same day. An amended petition was filed on the 27th day of January, 1903. The amended petition consisted of seven counts, the two first being equitable and the last five being actions at law on promissory notes. The first count was based on four promissory notes executed by Eliza J. McClellan to George T. Moore, the respondent, on August 9, 1887, payable three years after date, secured by four separate deeds of trust on lots six, seven, eight and nine in block one in West Ridgeway, a subdivision of land in Jackson county, Missouri; the assignment of said notes to appellant, Nevius, by Moore, before their maturity; their reassignment to Moore as a pledge for loans, after maturity; the foreclosure of said deeds of trust by Moore while holding said notes as a pledge, and a general charge of fraud and misrepresentation by Moore for the purpose of relieving himself of his liability as indorser. It is alleged that at the maturity of said notes they were presented to the maker, demand of payment made, and notice of refusal of payment given to Moore as indorser. It was alleged in the original petition that interest was paid on said notes up to and including February 9; 1892, and in the amended petition that it was paid up to and including August 9, 1892; that in 1898 Moore admitted his liability on said notes as indorser and again promised to pay them; that Moore was agent of Nevius and as such took advantage of him and deceived him; that he borrowed money from Moore on the security of said notes as collateral temporarily until said deeds of trust could be foreclosed. Fraud and misrepresentation- are charged against Moore in making the loan to Nevius and pledging the McClellan notes. It is charged that Moore represented that he was insolvent and that he would have to get the money from some other person, when as a matter of fact the money furnished was Moore’s. It is charged that Moore converted the McClellan notes to his own use by having the deeds of trust foreclosed and title taken in his name, and that he was guilty of fraud in not giving Nevius notice of the time and place of sale and the fact that he had bought the lots at the sale. Appellant prays an accounting; that after giving Moore credit for the sums loaned him, he have judgment for the balance; that the title to the lots be decreed in appellant and that Moore be required to yield up the McClellan notes.

The second count of the amended petition is based on a note dated January 15, 1889, given by Joseph J. Baughman to respondent, George T. Moore, payable three years after date, secured by a deed of trust on lots nine, ten and eleven, block fifty-two, in Oentropolis, a sub-division of land in Jackson county, Missouri, which note was assigned and transferred to Nevius before its maturity. The allegations of this count are in all things similar to those of the first count, except that this note was not pledged to secure a loan; alleges that interest was paid on said note up to and including July 15, 1892, and alleged in original petition to have been paid up to January 15, 1892; alleges that Moore had the deed of trust foreclosed and purchased the property in his own name. Prayer, similar to that contained in the first count.

The third, fourth, fifth, sixth and seventh counts are actions at law against Moore as indorser, each based on one of the foregoing five promissory notes. Each count alleges presentment, demand, refusal to pay and due notice to Moore as indorser.

Answering the various counts of appellant’s petition respondent admitted the execution of the notes, their ownership by Nevius, the foreclosure of the various deeds of trust, etc. Denied that he practiced or contemplated any fraud against Nevius. Offered to deed the Baughman property to Nevius, which deed was made and accepted. Further offered to deed to Nevius the McClellan lots when he redeemed his notes amounting to eight hundred dollars; denies his liability on all notes as indorser and otherwise; pleads the ten-year Statute of Limitations as a bar to a judgment on the notes against him.

This sufficiently indicates the nature and character of the pleadings as well as the issues upon which this cause was submitted to the trial court.

The evidence developed upon the trial was substantially as follows:

On August 9, 1887, Eliza J. McClellan executed and delivered to George T. Moore her four promissory notes for four hundred dollars each, payable three years after date with interest at the rate of ten per cent per annum from maturity. Semi-annual interest coupons amounting to $96 were attached. To secure the payment of said promissory notes four separate deeds of trust were executed by said McClellan, and one R. L. Yeager was made trustee therein. These deeds of trust were duly recorded on September 29, 1887, in the recorder’s office of Jackson county, Missouri.

On January 15, 1889, one Joseph J. Baughman executed and delivered to George T. Moore a note for $750, payable three years after date, with interest at the rate of eight per cent per annum, payable semiannually. This note was also secured by deed of trust on certain lots of ground made to R. L. Yeager, trustee, and duly recorded in the recorder’s office in Jackson county, Missouri, on the 18th day of January, 1889.

Afterwards and before the maturity of the five notes above described, they were purchased by the appellant from the respondent, Moore. Nevius claims that they were indorsed on the back by Moore. Moore claims that he does not remember whether he indorsed them or not. Nevius at the time lived in the State of New York and Moore in Kansas City, Missouri. Through one W. B. Thayer, Nevius was put in correspondence with Moore with a view of investing some money in Kansas City. On September 13, 1889, W. B. Thayer sent to Nevius notes which had been sold to him by Moore, amounting to $4,345.23; the Baughman note was embraced in the list. The McClellan notes were forwarded to Nevius at a later date, but the date is not fixed. Quite a number of letters passed between Nevius and Moore concerning the notes, in suit, but a great number were not offered in evidence because they could not be found. On October 10, 1891, Moore wrote to Nevius (in answer to a letter which is not in evidence) in which he stated that regarding the McClellan notes he did not see any immediate prospect of their being paid; that Mrs. McClellan had her money in property and could not pay the notes until she disposed of some of the property, and that there was no sale of real estate at that time. Also used this language: “There would be no objection to your using the notes as collateral, but you had better explain to the party to whom the notes are given that the interest will be kept up on the notes, but not to expect the principal too soon. They will come! out all right if they are not pushed to the wall.”

As to the interest on the Baughman and McClellan notes Nevius testified: “The interest on these notes, together with others, was being collected semiannually and paid to me by Mr. Moore.” A letter from Moore to Nevius, dated Ocala, Fla., Mar. 10, 1892, remits the interest due on the Baughman note up to January 15, 1892, and on the McClellan notes up to February 9; 1892. No other letter was introduced showing a remittance of interest due on the notes for a later date. On January 3, 1894, one Norton Thayer, writing to appellant from Kansas City, stated that the interest seemed to have been paid on McClellan notes recently and thought it quite likely some adjustment could be made and sufficient payment got to put the loan in good shape. Nevius, in his deposition, testifying as to interest on the Baughman note, stated that the interest was paid up to and including July 15,1892, and that on the McClellan notes, the interest had been paid up to and including August 9, 1892. He does not state how or through whom this, last interest payment was made, but does state elsewhere that all the interest on the notes in question was collected and sent to him by Moore, the respondent.

Respondent testified that he collected the interest on the Baughman note and McClellan notes remitted in the letter of March 10, 1892; this was interest due in January and February, and that after that date he was absent in Florida for two and a half or three years, with the exception of about one month when he attended the World’s Fair at Chicago. He, however, says he collected no more interest on the notes after March 10, 1892. There were interest coupons attached to the McClellan notes, which coupons were sent to respondent by appellant for collection, and he states that he never had the notes in his possession during the time that he collected interest, but that what interest he collected on the Baughman note he gave a receipt for. Respondent also states that he collected interest for a great many other persons, as well as for appellant, and that he collected all the interest on the notes in suit up to the time of default in the payment of principal. In the original petition filed by appellant in this cause it was alleged that the interest due on the McClellan notes was paid up to and including the 9th day of February, 1892; the amended petition changed this date to August. In the original petition it was alleged that the interest on the Baughman note was paid up to and including January 15, 1892, but in the amended petition this date was changed to July.

On the question of the indorsement of the Baughman and McClellan notes by the respondent, Mr. Yeager, trustee in the deeds of trust, testified that when the McClellan notes and Baughman note were delivered to him to be foreclosed they were indorsed by Moore, but whether without recourse he could not remember. Appellant testified that the Baughman notes were indorsed by respondent, and that also the McClellan notes were indorsed “G-eorge T. Moore,” over which had been written “without recourse,” through which last words a pen had been drawn canceling them. Eespondent says that he probably indorsed the notes, but he does not remember in what shape. He testified that all the notes in question were payable at the National Bank of Kansas City. The deed of trust offered in evidence showed the Baughman note payable at this bank. The evidence shows that neither appellant, respondent nor any one else ever presented the Baughman or McClellan notes to the makers or to the National Bank of Kansas City and demanded payment thereon. - Eespondent does testify that he probably notified McClellan and Baughman of the fact that their notes were due, but he did not have the notes with which to make formal demand of payment. Appellant offered no evidence showing a presentment, demand for payment or notice to respondent as indorser. Eespondent says his rule was to notify parties when notes became due, whether he had the notes or not, and that he no doubt did so as to the Baughman and McClellan notes; says that appellant never claimed liability against him on account of his indorsing of the notes, bi t that he wrote a great many letters about the property and making inquiry as to whether or not “we could help him. ’ ’

The evidence shows that all the notes in question remained in the hands of appellant or someone else in New York until the McClellan notes were pledged for a loan and until the Baughman note, in 1901, was sent to respondent for the purpose of having the deed of trust foreclosed. None of these notes have been seen or accounted for since they were placed in the hands of Mr. Yeager, trustee. The trustee testified that he received the notes, but remembered nothing further about them; stated that he had made diligent search for them among his papers, but they could .not be found. Respondent states that he gave the notes to Mr. Yeager and that he had not seen them since, although he made diligent search for them everywhere he thought they might be found.

On the question of Moore’s agency for Nevius in looking after his investments in Kansas City, the evidence shows that a Mr. Thayer, in September, 1889, when he sent a batch of notes to Nevius, among which was the Baughman note, advised Nevius to have Moore collect the interest on them, as he knew all about them. Moore wrote frequent letters to Nevius advising him of the probability of collecting the notes, and especially in October, 1891, he wrote saying that he saw no immediate prospects of collecting the McClellan notes, and further advising him that there was no sale for property. Nevius testified that as to the collection of interest on these notes he relied entirely on Moore. In February, 1893, Moore wrote to Nevius telling him in relation to the Baughman and McClellan notes that they were about to make a sale of some of the property and if they did that in all probability they would take the notes up and hold them; this last letter was written from Ocala, Florida. Also in the fall of 1893 Moore wrote Nevius from Florida telling him that if he was in Kansas City he would attend to looking after his interests there gratis, also telling Nevius that he was then utterly unable to help him out and referred him to Mr. Norton Thayer, who would look after his interests there. Nevius had Thayer and the father of respondent pay taxes for him several times, but the respondent never attended to those matters. In December, 1893, Norton Thayer wrote to Nevius advising him to pay taxes on the lots described in the deeds of trust, and also again Thayer wrote Nevius in January, 1894, sending him the amount of back taxes; Thayer in the last letter stated that in his judgment the McClellan'’ lots were good for the loan. Thayer wrote Nevius twice during the year 1894 concerning taxes on the lots and sent him a receipt for back taxes. In January, 1895; Thayer again wrote Moore concerning the lots and their value, telling him that there was no sale for property at that time and that the lots would not sell even if he had title. In September, 1895; Moore, who seems then to have been in Kansas City, answering a letter from Nevius, which is not in evidence, informed Nevius that Baughman was solvent and that his note could be collected for him; that he resided in Harrisburg, Pennsylvania; also advised Nevius to employ certain attorneys to help him, who held another note against Baughman; also in the same letter he told Nevius that property was looking up, that he thought Mrs. McClellan had property covered up and that within a short time she could be made to pay; also stated that he would do what he could to prevent Nevius losing anything on the notes he sold him; advised Nevius that he did not think that was the right time to push Mrs. McClellan. On January 11, 1900; Moore sent Nevius a draft for two hundred dollars, to cover a loan of January 5th, of that year; also advised that his note for four hundred dollars was .due on January 2nd, and that he had arranged to extend it on payment by Nevius of the interest due of $24; Nevius says this was the last letter he received from Moore. Nevius says that through all these transactions he relied upon Moore’s representations and considered him as acting for his' interests; that Moore knew the circumstances and the people and was generally better informed tban he was. Norton Thayer testified about a letter dated January 3, 1894, and written to him by Nevius; when asked if he had any conversation with Moore said that he did not think he had, because Moore was not in town at that time and had not been for several years. Moore says that he did not see or have possession of either the Baughman or McClellan notes after they were sold to Nevius until the Baughman note was sent Mm to be foreclosed, and the McClellan notes were pledged to him for a loan.

Both Nevius and Moore testified that neither of them retained copies of letters written to the other. Much of the correspondence that passed between them, it is clear from the evidence, was not introduced, and according to the testimony of the parties could not be because the letters were lost or misplaced.

On the question of the asserted promise to pay the notes in question by Moore after their maturity, the following evidence was adduced:

In a letter to Nevius from Moore, dated February 11, 1893, he stated that in regard to the Baughman and McClellan notes they were about to make a sale of some property and that if so in all probability “we will take the notes up or hold them ourselves.” In a letter written by Moore to Nevius dated Ocala, Florida, November 17, 1893, Moore said: “I am sorry to say that as you are to hear that I am utterly unable to help you at present,” and then refers Nevius to Norton Thayer to look after the taxes for him. In a letter from Kansas City, September 17, 1895, Moore said to Nevius: “Let me assure you I will do what I can to see that you do not lose anything on the notes we sold you. There is a time for everything but I do not think this is the right time to push Mrs. M,cClellan. Think you can make more by waiting a little longer. ’ ’ The letter most relied upon by appellant as a promise to pay these notes after their maturity, is the one dated Kansas City, February 10, 1898, written by respondent, Moore, to Nevius; it is an answer to a letter written by Nevius to tbe father of respondent; among other things the letter contains the following extracts: “I admit that you have been very patient in regard to the Baughman and McClellan notes, which will result in your advantage in the end. A foreclosure, as you say, would be expensive and I may add you would not better yourself thereby. A judgment against me, I am sorry to say, would be worth very little to you as I am now overwhelmed with judgments.” Eespondent continues in his letter to tell that after the collapse he went to Florida and there lost heavily; then he went to Texas and worked on a cattle ranch; he then goes on to outline his financial ventures and heavy losses, both in Florida and in Texas, at the same time giving to Nevius a history of his father’s financial dealings and heavy losses; then follows this language: “So far as I am concerned I am still hopelessly in debt. I am confident he will help me out just as soon as he is able to do so,' which I feel sure will be in the near future. So in this way I expect to settle most of my debts on some equitable basis. There is one thing certain, Mr. Nevius, and that is this, that those who have borne with me and have been patient are those who will be settled with first. Do not look upon this as a threat, but put yourself in my place, then whom would you favor, those who have made all sorts of threats against you, have taken judgments against you, thereby destroying your credit and making it impossible to give a good title to any property which you might have an opportunity to sell, or those who in their better. judgment have borne with you and had thereby so far as they were concerned afforded you an opportunity of regaining your lost fortune? I have put this matter clearly before you and trust you will appreciate my position. No doubt it has worked a hardship upon you but I would not have had it so could I have helped it. ’ ’ Eespondent closes Ms letter with these words: “So trusting you will hear with me' a while longer and assuring you I will do all in my power to settle these matters at the earliest possible moment/ and that threats of foreclosure and judgments will not bring this about any sooner.”

As to the Baughman note Moore wrote to Nevius as early as September, 1895, advising him of the residence of Baughman in Pennsylvania, and advising steps to collect, same against Baughman, because he was then solvent. Again in February, 1897, Moore wrote to Nevius in relation to this note, stating to him that if he had not begun proceedings against Baughman he should do so. A few days later Moore wrote ag’ain to Nevius telling him that an action against Baughman on a companion note for $750 had been successful, that he had paid the judgment, and again urged him to proceed against Baughman by placing the note in the hands of the firm of attorneys he gave, for collection. On January 9, 1899, Moore wrote to Nevius to send the Baughman note to Kansas City so that the deed of trust could be foreclosed, suggesting that he buy the property in and then bring suit against Baughman on the note. Again in December, 1899, Moore wrote to Nevius in which he strongly advised that he send the Baughman note out and have the deed of trust foreclosed; further advised him to bid the property in and gave reasons why he thought it would increase in value. Later in December, 1899, he again wrote Nevius concerning the Baughman note and advised a foreclosure of the deed of trust and also informed Nevius that he thought Baughman was good. Evidently the Baughman note was sent to. the firm of lawyers suggested by Moore; on June 6, 1901,. they returned the note to Mr. Moore. The evidence shows that the Statutes of Limitations in the State of Pennsylvania against a promissory note is sis years and during all the time Nevius owned the Baughman note he, Baughman, resided in Pennsylvania and that he was advised of this fact before the note became barred. On January 4, 1899, Nevius wrote to Moore that he declined a settlement of the Baughman note made through the firm of attorneys who held the note for collection, and stated that he preferred to foreclose. During the trial of this case in the circuit court a deed to the Baughman lots which had been conveyed to Moore by the trustee at the sale was tendered to the appellant and was accepted by him.

Nevius testified that in January, 1899, he borrowed from Moore four hundred dollars, for which he pledged two of the McClellan notes; that in December, 1899, he borrowed two hundred dollars more and pledged the third McClellan note; and that in January, 1900, he borrowed two hundred dollars more from Moore and pledged the fourth McClellan note. Each of these notes was pledged by the following writing: “These notes are to be held by you as collateral security for a loan of $-• until such time as the property can be foreclosed, when I will give you a mortgage on said property should I buy it in.” The letters containing the above pledge were addressed to Moore. In December, 1898, Moore, in answer to a letter from Nevius, which is not in evidence, offered to buy the McClellan notes from Nevius or to get some one to furnish money and stated the amount to be eight hundred dollars; also stated that if he effected a sale of the property within a year or two he would give Nevius all over eight hundred dollars less expenses, taxes, etc. Nevius declined this offer and then made application to Moore to borrow the money above referred to. In making’ the loans made by Moore to Nevius notes were executed by Nevius to Moore for the aggregate sum of eight hundred dollars, which were secured by pledges of the McClellan notes and deeds of trust. Moore represented to Nevius that he did not have the money, but he would get it from William H. Reid or some third person. He first wrote to Nevius to make the notes payable to Reid, but after-wards because the pledge agreement was made in the name of Moore he returned the notes and had them made in his name. After the McClellan notes were pledged for the loan of eight, hundred dollars Nevius wrote to Moore and asked him if he proposed to foreclose at once or wait until spring with the possibility of getting full price. The three notes made by Nevius to Moore, one dated January 2, 1899, for four hundred dollars, one dated December 1, 1899, for two hundred dollars and another dated January 5, 1900, for two hundred dollars, were all payable one year after date at the First National Bank of Kansas City, Missouri; no part of these notes, either principal or interest, has ever been paid or tendered by Nevius. Just prior to making these loans Nevius wrote to Moore and asked him if he could not do something to clean up his loans in Kansas City, that his financial condition was not good and that he had done nothing but lose money; this letter seems to have been the one which drew from Moore the proposition which he made to Nevius. After the last loan was made to Nevius it seems that Nevius did not write Moore again either concerning his personal notes or the Baughman and McClellan notes. Moore says that Nevius had pledged these notes as collateral for the loans he had gotten for him; says he paid no attention to the notes, paid no interest nor ever wrote or took any interest apparently, and that he simply had them foreclosed. Respondent, Moore, while on the witness stand, and through his attorney, as well as by the pleadings, offered to deed the McClellan lots to Nevius if he would pay the loan procured for him by Moore, amounting to eight hundred dollars, and interest. Moore testified that' when these loans were made to Nevius he did not have the money, that Mr. Reid, his brother-in-law, had agreed to let him have the money, and lie was under the impression that he got it from Reid until he looked over some old checks and found that he got the money from his wife. The notes made by Nevius, as well as the collateral placed by him with Moore, remained in Moore’s possession and never went into the possession of Reid or Moore’s wife, except as they may have been held by him for his wife.

As to the foreclosure of the deeds of trust given to secure the Baughman as well as the McClellan notes, the testimony shows that the Baughman deed of trust was foreclosed at the request of Nevius upon the advice of Moore that it ought to be foreclosed. The McClellan deeds of trust were foreclosed because, as Moore claims, the notes given by Nevius to him aggregating the sum of eight hundred dollars had become overdue and that Nevius did not pay or offer to pay them or any part of them. The McClellan notes and deeds of trust were then in his hands as a pledge to secure the payment of the Nevius notes. Under the contract of pledge Moore had the right to foreclose the deeds of trust when the Nevius notes became due. Moore claims that he instructed the trustee, Yeager, to deed the Baughman property to Nevius; he also claims that he did not know this property was deeded to him until his .attention was called to it by Nevius’s attorney. Notice of these sales was given in the manner provided by the deeds of trust; in fact, no point is made nor is any fraud charged in the manner of making the sales, except that Moore did not notify Nevius of the fact that the sales were to be made, nor the time, nor did. he afterwards notify Nevius that the sales had been made; in fact, there seems to have been no correspondence passing between Moore and Nevius after the year 1900. Expenses of these sales, amounting to about eighty-five dollars, were paid by Moore and he never asked Nevius to pay any part of them. At the sales each lot under separate deeds of trust was sold for one hundred dollars and no money was paid except the costs of making the sales. The testimony tends to show that the balance, after deducting the costs, was credited on the notes.

This is a sufficient indication of the nature and character of the testimony upon which the issues in this case were submitted to the trial court. At the close of the testimony the cause was submitted to the court and the finding and judgment rendered upon all the counts in the petition were in favor of the defendant. A timely motion for new trial was filed and by the court overruled, and from the judgment rendered in this cause plaintiff in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses that at the close of the evidence .the plaintiff requested the court to declare the law upon the issues presented by the pleadings, as follows:

First. That the plaintiff was entitled to a judgment on each ground of the petition.

Second. That the ten-year Statute of Limitations had not run against the notes.

Third. That the letter of February 10, 1898, had the effect of avoiding the Statute of Limitations.

Fourth. That said letter dispensed with the proof on the part of the plaintiff of any demand for the payment of the notes in suit, as well as any notice and protest by reason of such non-payment.

Fifth. That it was not necessary for plaintiff to exhaust his remedy at law against McClellan and Baughman before proceeding against defendant.

Sixth. That if defendant procured from his wife the money loaned to plaintiff, the pledge-of the MeClellan notes was void unless they were actually delivered to his said wife.

Seventh. That the defendant was not the pledgee of the McClellan notes, nor the legal holder thereof.

All of the declarations of law requested by the plaintiff, as indicated, were refused by the court. The trial court manifestly tried this case upon the first two counts, or, in other words, the equity counts as contained in the petition. Obviously the trial was had upon the equity counts for the reason that if appellant was not entitled to recover upon either of those counts clearly he could not recover on any of the others. It is wholly immaterial so far as the equity counts of the petition are concerned whether the instructions were correct declarations of law, or whether they were properly or improperly refused. However, in the consideration of this cause we shall undertake to treat of and announce the rules of law applicable to all of the counts embraced in the petition.

In equity cases this court will exercise its right to review the testimony as disclosed by the record and draw its own conclusions as to the rights between the parties. However, in reviewing the testimony disclosed by the record we are not unmindful of the well-recognized rule that where the testimony is conflicting and disputed questions of fact are to be settled, by reason of the superior advantage possessed by the chancellor to observe, the conduct of the witnesses and to weigh their testimony, the appellate court will defer in a large measure to the finding of the trial court upon such disputed questions. [Harris Banking Co. v. Miller, 190 Mo. 640.]

I.

While the record before us does not in terms so disclose, it is obvious that the trial court entertained the views that the causes of action stated in all the counts of the petition were barred by tbe ten-year Statute of Limitations at the time of tbe institution of tbis suit, in tbe circuit court of Jackson county. Whether or not tbis was true depends upon tbe last payment of interest. Tbe McClellan notes became due on August 9', 1890, and tbe Baughman note became due on January 15, 1892. Tbis action was begun by tbe filing of appellant’s petition of June 26, 1902. Tbe interest on these notes was payable semiannually. It is conceded that tbe interest was paid in full on tbe McClellan notes up to February 9, 1892, and on tbe Baughman note up to January 15, 1892. On March 10, 1892, respondent by a letter written from Ocala, Florida, remitted to appellant tbe interest due and collected on said notes up' to tbe dates named in January and February, 1892. Appellant in bis deposition testified that tbe interest was paid ón tbe McClellan notes up to and including August 9, 1892, and on tbe Baughman note up to and including July 15, 1892; be further testified that all tbe interest collected on these notes was collected by respondent. Tbe evidence further shows that from tbe early spring or winter of 1892 respondent was in tbe State of Florida, and remained there for two and a half or three years, during which time Moore testified be did not 'visit Kansas City nor collect any interest nor have anything further to do with these notes. Tbe statement of appellant that tbe interest was paid up to July and August, 1892, is not corroborated by any letter of remittance and is positively contradicted by tbe respondent, and tbis contradiction by respondent is corroborated by tbe undisputed fact of respondent’s absence from Kansas City at tbe time the appellant states the interest was paid. Moreover, appellant alleged in bis original petition tbe last payments of interest to have been tbe amounts due in January and February, 1892. Tbe circuit court determined tbis issue in favor of respondent. Owing to tbe fact tha,t the chancellor had the witnesses before him, whose conduct and manner of giving testimony he could observe and weigh, we are inclined to defer to his finding on this question and áre further of the opinion that the evidence preponderates in favor of his view.

rr.

It is apparent from the evidence disclosed by the record that there can be but one reasonable inference drawn respecting the sale and transfer of the notes in question to the plaintiff, Nevius, and that is, that the defendant indorsed said notes before maturity by writing his name on the backs thereof. Under these circumstances, in order to hold Moore liable as indorser, it was necessary for Nevius to make presentment and demand of payment of the notes at their maturity and to notify Moore of the failure of the makers to pay. The evidence discloses clearly that no proper presentment and demand of payment was made nor was notice given to respondent. In fact, at the maturity of all the notes they were in the hands of Nevius in New York — they could not have been properly presented and demand of payment made without the presence of the notes. The fact that Moore may have notified McClellan and Baughman that their notes were due falls far short of answering the requirements of the law relative to presentment, demand and notice.

III.

It is next earnestly insisted by learned counsel for appellant that the letter written by Moore, the defendant, to Nevius, the plaintiff, on February 10, 1898, in connection with other letters written prior thereto, constitutes a waiver of presentment, demand and notice, and by such waiver converted his conditional liability into an absolute engagement to pay such notes. In the letter referred to Moore said to Nevius: “I admit that you have been very patient in regard to tbe Baughman and McClellan notes which will result in the end to your advantage.” After discussing his financial affairs generally and his inability to pay, he wound up with these words. “So, trusting you will bear with me a little while longer and assuring you I will do all in my power to settle these matters at the earliest possible moment, and that threats of foreclosure and judgment will not bring this about any sooner.”

The only consideration we think necessary to be given to the language of this letter is whether or not it was sufficient to constitute a waiver of presentment, demand and notice, and thus continue or reinstate Moore’s liability as indorser. This letter was not written by the maker of the notes and as there was no consideration therefor shown as applicable to the indorser, it certainly could not have the effect of creating an independent liability to pay the debt represented by the notes. “If the proper steps are not taken to fix the indorser and thus convert his conditional liability into an absolute engagement, he is discharged, unless, with a full knowledge of all the facts of his release, he promised to pay the debt, or does acts from which said promise can be clearly and unmistakably inferred.” [Faulkner v. Faulkner, 73 Mo. 327; Long v. Dismer, 71 Mo. 452.]

In the case of Thornton v. Wynn, 25 U. S. l. c. 188, the court used this language: “These declarations amount to an unequivocal admission of the original liability of the defendant to pay the note and nothing more. It does not necessarily admit the right of the holder to resort to him on the note and that he has received no damage from the want- of notice, unless the jury, to whom the conclusion of the facts from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder in not making the demand of payment of the note by which he was discharged from his obligation to pay it. The knowledge of this fact forms an indispensable part of plaintiff’s case, since without it it cannot fairly be inferred that defendant intended to admit the right of plaintiff to resort to him, if in point of fact he had been guilty of such laches as would discharge him in point of law. For anything that appeared to the court below from the evidence stated in the bill of exceptions, the admission of the defendant may have been made upon the assumption that the holder had done all that the law required of him in order to charge the indorser. That due notice was given to the defendant he could not fail to know, but that a legal demand of payment had been made of the maker of the note could not be inferred by the court from the admission of the defendant.”

In Dyas v. Hanson, 14 Mo. App. 363, it was expressly held by that court, that “the rule is that a party relying upon a waiver of liability must prove that it was made with full knowledge of the facts by the party who thus releases his rights.” To the same effect is Thresher Co. v. Pierce, 74 Mo. App. 676. It is there said: “To constitute waiver there must be actual knowledge of all the facts and an acquiescence in the failure of the other party to have lived up to the letter of his contract.”

Our attention is directed by learned counsel for appellant to a line of cases treating of the sufficiency of an acknowledgment of a debt in order to take it out of the Statute of Limitations. An examination of those cases will demonstrate that they have no application to' an indorser, but the conclusions reached and the rule announced in these cases manifestly had in view the person originally bound as a maker of the note, and in such cases it is obvious that it is not necessary that the party acknowledge a willingness to pay the debt. It is sufficient that he acknowledges that he owes the debt and that it is not paid. [Chidsey v. Powell, 91 Mo. 622, and cases cited.] But these cases are not applicable to the facts of this case. If the letter referred to of February 10, 1898, considered in connection with prior letters written by Moore, has any effect whatever in creating a liability on the part of Moore in favor of Nevius, then it is that of indorser. It must have the force and effect of waiving, the duty incumbent upon Nevius to present the notes to the makers for payment and giving notice to Moore of the refusal of such payment. In order to hold Moore liable for the payment of these notes as indorser, on the g’round that the letters as herein indicated constitute a waiver of presentment, demand and notice, it was absolutely essential, as ruled in the cases heretofore indicated, that Moore at the time of writing the letter had knowledge of all the facts and knew that there had not been due presentment to and demand of the makers for the payment of such notes and their refusal to make such payment.

There' is an entire absence of any evidence indicated by the record that Moore, at the time he wrote the letter herein referred to, knew that the notes had not been presented to the makers for payment. Obviously the defendant, Moore, knew that he had not received notice of the presentment to and demand of. the makers for payment of the notes and their refusal to make payment, but that is not sufficient, in the absence of testimony showing that he had knowledge of all the facts, to give the letters as indicated herein the force and effect of a waiver of presentment, demand and notice.

But aside from what has been said heretofore, that the facts developed did not constitute a waiver of presentment, demand and notice, it is very questionable as to whether or not under the allegations in the petition of this case any testimony tending to show a waiver was admissible. It is expressly alleged in all the counts of the petition that at the maturity of said notes the same was duly presented and demand of payment of the same was duly made upon the maker, which was by him refused, of which presentment and non-payment defendant, George T. Moore, had due and timely notice, whereby said Moore became liable to pay the amount of said note to plaintiff.

It was ruled in Pier v. Heinrichoffen, 52 Mo. 333, that an allegation in the petition, as in the case at bar, of demand of payment, at maturity, and due notice thereof to the indorser, could give no intimation to the defendant of the nature of the evidence, by which the plaintiff proposed to sustain it. The indorser could only know that he received no notice; but of what steps if any were taken to give it, or of the causes of the failure to give it, or of the facts relied on to excuse the want of it, he of course is presumed to have no knowledge. “These are matters within the knowledge peculiarly of the plaintiff, which he should allege in his pleading and prove.”

In First National Bank of Burlington v. Hatch, 78 Mo. l. c. 24, the case last cited was unqualifiedly approved. It was there said that “the instruction of plaintiff relating to a waiver of presentment and notice of dishonor, was properly refused. When the plaintiff, in his petition, alleges presentment and notice of dishonor, he is not permitted, under our Practice Act, to prove that the defendant waived such conditions, in the absence of proper averments of a waiver.”

It is alleged in the respective counts of the petition that “the defendant in the year 1898 admitted in writing his liability to plaintiff for the amount of said note with interest .and promised to pay the same, but has failed so to do, and same is now due and payable.” This allegation, in our opinion, is not sufficient to admit the proof of the facts as indicated by tbe record tending to show waiver of presentment, demand and notice. As said in Pier v. Ileinrichoffen, supra, of what steps if any were taken by tbe plaintiff to give it, or of tbe causes of tbe failure to give it, or of the facts relied on to excuse tbe want of it, tbe indorser, of course, is presumed to bave no knowledge. These are matters, as said in that case, within tbe knowledge peculiarly of tbe plaintiff, which be should allege in bis pleading and prove. Manifestly tbe plaintiff in this case did not intend by tbe allegation, as heretofore indicated, to tender tbe issue of a waiver of such demand. If such was tbe case then clearly tbe pleading would be open to tbe charge of duplicity, for it is expressly alleged that due demand, protest and notice bad been made, and manifestly tbe pleader did not intend by tbe allegation that in tbe year 1898 tbe defendant admitted bis liability to plaintiff on account of bis indorsement of said notes and promised to discharge tbe obligation thereby created, to contradict the allegation wbicb preceded it, that due demand, protest and notice bad been made, and that defendant, with full knowledge of all tbe facts, bad waived presentment, demand and notice of toon-payment. In other words, such allegation should not be construed as saying that due demand, protest and notice bad not been made.

We repeat, that tbe allegation concerning tbe admission of liability of tbe indorser to tbe plaintiff is not such a concise statement of tbe facts wbicb would constitute a waiver as would give a sufficient intimation to tbe defendant of tbe nature of tbe evidence by which tbe plaintiff proposed to show a waiver of due presentment, demand and protest. In other words, if plaintiff was relying upon a waiver of presentment, demand and notice of non-payment, then be should not bave alleged that due presentment, demand and notice was made, but should bave expressly alleged the facts upon which he relied to constitute a waiver of such presentment and demand of payment. But as we have held, even conceding- that the pleading was sufficient to admit of the proof, still the evidence as introduced was insufficient to show a waiver. There is no necessity for further discussing this proposition.

IV.

It is next earnestly insisted by appellant that the pledge by him of the McClellan notes to respondent to secure the payment of $800 borrowed by appellant was fraudulent and void in this, that Moore misrepresented the facts to the appellant in claiming that the money was to be furnished by one Reid or some other person, when, as a matter of fact, he furnished the money himself. It is claimed that in 1901 Moore converted and appropriated the McClellan notes to his own use by having the deeds of trust securing the same foreclosed and buying the property in his own name. It is also claimed that Moore furnished the money himself for this loan and got possession of the McClellan notes for the 'purpose of destroying his liability as indorser. As applicable to these claims and. contentions on the part of the appellant it must not be overlooked that the appellant, Nevius, knew that he was executing the notes to secure the $800 to Moore, and equally had full knowledge that the written pledge contained in his letter was also made to Moore. This contract of pledge gave express authority to sell under the deeds of trust. So far as the sales under the deeds of tra^ were concerned the record discloses no attempt to charge or prove any fraud, except in so far as it is claimed that the failure of Moore to notify Nevius of the fact and the time of sale, and that the sales had taken place, were badges of fraud. No complaint is made of the want of proper notice under the terms of the deeds of trust, or that there was any scheme or fraud resorted to on the day of the sale. The record, disclosing the evidence, makes no showing as to value of the property, or that it was sold to Moore for less than its value. Pertinent to the consideration of the claims insisted upon hy appellant as to fraud and misrepresentation is the testimony of the defendant, Moore. He testified that he obtained the money furnished Nevius, the appellant, from his wife. This testimony was a correction of the statment as made in the deposition that he obtained the money from Reid. Upon this state of facts, it being undisputed that the notes for the $800' furnished Nevius, the appellant, by Moore were executed.by Nevius to Moore,' and that the pledge as security for such note of the McClellan notes was also in the name of Moore, and that Nevius knew these facts and made no objection to them, in our opinion it was immaterial whether he obtained the money from his wife or Reid. It is apparent that Moore furnished the $800' to the appellant, Nevius, and whether such money was the money of Reid, or the money obtained from his wife, we are unable to conceive how this could in any way affect, injure or prejudice the rights of the appellant. While it is true that under the written pledge Moore had no right to sell or dispose of the McClellan notes, and he did not sell them; they were held for himself or by him as agent for Reid or his wife, but he did have the right, in pursuance of the written pledge, to foreclose the deeds of trust after the maturity of the McClellan notes. After the foreclosure and purchase by Moore he unquestionably held title to the lots purchased in trust, subject to the right of Nevius to redeem his notes and demand a conveyance to himself of the lots of ground so sold. This Nevius never did, nor has he offered to do so.

The law is well settled that the obligation and duties of a pledgee and pledgor are mutual and reciprocal. While the pledgor must be ready and willing and offer to pay the indebtedness before demanding a return of the collateral, the pledgee also when he demands payment of the original indebtedness must be ready to return and deliver to the pledgor the collateral left with him as security. [Richardson v. Ashby, 132 Mo. 238; Hagan v. Bank, 182 Mo. 319.]

The appellant, Nevius, in this cause has never offered to pay his note for $800 made to Moore, nor does he make such offer now, either in his pleading or otherwise, exceiff by requesting that an accounting be taken between himself and Moore; that his claim against Moore be set off against his notes made to Moore and that he have judgment for the balance.

Under the facts as disclosed by the record in this cause we have reached the conclusion that at the time of the institution of this suit Moore was not indebted to Nevius; hence it logically follows that the allegations in the petition failed to amount to a tender of offer to redeem. It may be that appellant, Nevius, is entitled to have the McClellan lots conveyed to him by Moore upon the payment by him of the debt of $800, together with interest, but the difficulty of entering a decree of that character is that the appellant, Nevius, has not performed nor offered to perform what the law requires of him, that is, the payment of or a tender of payment of the notes for $800 executed to the respondent Moore. The fact that Moore did not notify Nevius of the time of the sales under the deeds of trust, nor of the fact that the sales had taken place, in our opinion did not prejudice his rights, nor take from him the continuing right to redeem his pledges.

Y.

Upon the second count of the petition, which is predicated upon the Baughman note and deed of trust, it is sufficient to say that the record discloses that the appellant, Nevius, accepted upon trial a deed to the real estate covered By the deed of trust to secure the Baughman note, hence it follows that there is no necessity for a consideration of the Baughman note.

We have given expression to our views upon the legal propositions as disclosed hy the record, and have carefully reviewed all the facts developed upon the trial. In our opinion the judgment of the trial court should be affirmed, and it is so ordered.

All concur.