text:
    How & Bogue, Appellants, vs. Graham & others, Respondents.
    1. A court of equity will not, unless under special circumstances, compel the holder of a prior deed of trust on real estate, which is past due, to permit . ‘the holder of a second deed of trust not yet due to redeem and take an assignment.

      Appeal from, St. Louis Land Court.

    This was a petition filed in September, 1854, to redeem a deed of trust on real estate. The facts stated in the petition were, that on the 2d of August, 1852, the trustee of the wife of Graham, by her consent, conveyed the real estate to the plaintiff, How, in trust to secure the payment to the plaintiff, Bogue, of ten promissory notes, one for $4387 10, payable five years after date, and nine for $127 78 each, payable semiannually ; that prior to this, to-wit, on the 23d of August, 1851, the same real estate had been conveyed by Mrs. Graham and her trustee to one of the defendants, in trust to secure to Michael Lynch the payment of two promissory notes, each for $731 33, payable one in nine and the other eighteen months after date; that said last mentioned notes and deed of trust were by Lynch endorsed and transferred to Charles Bobb, another of the defendants ; that the first and a portion of the second of the notes secured by the last named deed of trust had been paid ; that the plaintiff, Bogue, had tendered to Bobb the balance due upon the second note, with interest, and had requested him to assign to him the note and deed of trust, but that he refused to accept the money or make the assignment.
    The petition further stated that the security of Bogue for his debt was greatly impaired by the existence of the prior deed of trust, wherefore he prayed to be permitted to redeem, and that the defendant, Bobb, be required to assign, &c.
    The petition was demurred to, and the following causes assigned :
    1. It does not appear who is in possession of the mortgaged premises.
    2. It does not appear who is seized of the mortgaged premises in fee.
    3. It does not appear who is receiving the rents of the mortgaged premises.
    4. It does not appear who is the owner of the mortgaged premises.
    5. There is no averment of an absolute and unconditional tender of the money to Bobb.
    6. There is no equity stated in the petition — no fact by which the incumbrance of Bogue is endangered.

      T. The plaintiffs are not entitled to the relief asked.
    The demurrer was sustained, and the petition dismissed, and the plaintiffs appealed to this court.

      Krum & Harding, for appellants,
    cited 2 Story’s Eq. Jur. § 1015, 1016, 1028. 7 J. C. R. 25. 4 Kent’s Comm. (2d ed.) p. 162.

      Cline & Jamison, for respondent.
   Scott, Judge,

delivered the opinion of the court.

It looks as if the only purpose of this suit is, to enable Bogue, who has a large incumbrance on this lot, not yet due, to obtain the control of a debt already due, in order to force a sale of the lot, so that by the aid of his incumbrance he may either cause a sacrifice of the property, or obtain it on better conditions than it would otherwise be obtained. If the plaintiff’s real object was merely to obtain possession of the security which stood before his, why did he not proffer to give a bond conditioned that he would not enforce the debt, in the event it should be assigned to him, until the debt due under his deed of trust should become due?

We can see no equity in this suit, whatever motive may have prompted it. If the prior deed of trust is satisfied, the plaintiff’s condition, with respect to the lot, is not bettered. In such event, he could not proceed in any way against the lot. It does not appear that he is entitled to the rents and profits of the lot to keep down interest, if any is due, which is not shown.

We do not see what the law respecting mortgagor and mortgagee has to do with this matter, as both the instruments alluded to in the petition are deeds of trust. The other judges, concurring, the judgment will be affirmed.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Labeaume, to use of Chouteau, Plaintiff in Error, vs. Sweeney, Defendant in Error.
    1. A boat was seized by attachment in a suit against the owner. S., the master of the boat, who had no other interest in it, executed a bond, with L. as surety, conditioned for the forthcoming of the boat. The boat was subsequently sold, and C. became part owner. L. was about to deliver up the boat, when C. gave him a bond of indemnity. C. afterwards paid the indemnity to L., and took an assignment of his recourse against S. In a suit brought by C. in the name of L. against S. to recover the amount thus paid, held, that he could not recover.

      Error to St. Louis Court of Common Pleas.

    The facts shown by the record in this case are the same as when it was formerly here, (IT Mo. Rep. 153,) with the following exceptions :
    It now appears that after the delivery bond was entered into by Labeaume and Sweeney, James Myers became the owner of the steamboat Frontier, and brought her to St. Louis; that upon her arrival here, Labeaume told Myers that the boat would be delivered up to the sheriff under the bond, unless an indemnity was given against it. Myers thereupon transferred one-fourth of the boat to Chouteau, and gave him the agency of the boat, and Chouteau then gave an indemnity to Labeaume against the bond. The object of the arrangement was, to secure the parties liable on the delivery bond, and to free the boat from detention.
    The instructions given by the Court of Common Pleas were based upon the idea that the law formerly laid down by this court was applicable in the present aspect of the case.

      C. B. Lord, for plaintiff in error.

      Glover & Richardson, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

When this case was formerly here, it was not presented in the shape which it now wears. It did not then appear in what capacity Chouteau interfered in this transaction. The cause was determined on the face of the obligations, as they stood, there being no equitable circumstances for Sweeney, showing that Chouteau was not entitled to the money he sought to recover through Labeaume.

We are of the opinion that the case now wears an aspect different from that it formerly assumed.

This action was commenced under the former system of practice, and is for money paid for the use of another. He who paid it has been indemnified, and he is now seeking to recover it for the benefit of him by whom he was indemnified. It is as if a bill in equity had been brought by Chouteau to subject Sweeney to the payment of the money he has been compelled to refund to Labeaume. The proceeding being equitable in its nature, if Chouteau is not in equity and good conscience entitled to demand the money of Sweeney, this action cannot be maintained. Labeaume, as surety, entered into a bond, with Sweeney as principal, for the forthcoming of a steamboat, to answer a judgment in a suit against the owner. 'Sweeney, it appeal’s, was no otherwise interested in the boat than as her commander at the time of the attachment. Afterwards, La-beaume threatened to detain the boat, unless he was indemnified. Chouteau came forward and gave him a bond of indemnity, and afterwards refunded the money which Labeaume was compelled to pay by reason of his suretiship. At the time Chouteau indemnified Labeaume, he was part owner of the boat, and did it with the consent and by an arrangement with the other owners of it. Now, the proceeding in which the boat was attached was not one under the act concerning boats and vessels, but it was one in which the boat was seized as any other property would be in an attachment suit. This being so, the bond given by Sweeney and Labeaume did not discharge the lien of the attachment. It was a valid and subsisting incumbrance on the boat, at the time Chouteau and others became its purchasers, of which they were bound to take notice. (Evans v. King, 7 Mo. Rep. 411.) This lien was discharged by Labeaume, and an owner of the boat refunded to him the money he paid. Now, where is the equity in permitting that owner, through Labeaume, to recover the money he has paid, from Sweeney, who had no interest in the boat, and who had merely performed an act of kindness towards a former owner ?

Courts of equity originally had jurisdiction of actions brought by a surety against his principal, for money paid on his account. Equitable considerations must ^govern such actions, when brought at law. Here, the surety has been indemnified, but a suit is brought in his name for the benefit of the person by whom he was indemnified, and it is made to appear that he who gave the indemnity was under legal and moral obligations to do so ; that he reaped the benefit obtained by giving the indemnity, and though another was nominally in the bond as principal, yet that principal was in fact the representative of the party indemnifying. We can not see the justice in making Sweeney pay this money. When this case was formerly here, this view of the matter was not presented by the evidence. It did not appear that Chouteau had any interest in the boat; it seemed that he was a mere volunteer in the transaction, as La-beame was. But now it is different. Chouteau became the owner of the property which Labeaume was about to seize. He indemnified Labeaume in order to prevent it. The advantage resulting from Labeaume’s desisting accrued to Chouteau, and now to permit him to be indemnified out of the pocket of a person who had no interest in the property, would be the grossest injustice. Chouteau must have been aware of the existence of the lien created by the attachment, when he purchased his interest in the boat. It would appear, then, that he could not have been deceived or misled by reason of the boat’s being released by the delivery bond executed to the sheriff by Sweeney and Labeaume. From aught that appears, the purchasers of the boat were indemnified by the vendor for the incumbrance existing at the time of the sale.

We cannot regard this as a suit brought by Labeaume in his own right against Sweeney. If such was the case, Labeaume’s right to recover would be indisputable, and so would be the right of one to whom be bad assigned bis debt, who was unaffected with any equity arising out of tbe transaction. But Labeaume bas been satisfied, and he by whom be was satisfied, and by whom be ought to have been satisfied, is now mating use of La-beaume’s name to recover a sum of money to which, in equity, be bas no title. Chouteau is compelled to adopt an equitable form of action, and if bis case, as made, shows that be bas no equity, it cannot be sustained.

This opinion will show the errors in the instructions, and it is deemed unnecessary to review them. The other judges concur. Judgment reversed and remanded.


author: Ryland, Judge.

text:
    Heath & others, Respondents, vs. Walther, Appellant.
    1. No exceptions saved in a case originally begun before a justice of the peace. Judgment affirmed.

      Appeal from St. Louis Law Commissioner’s Court.

      Kribben & Delafield, for appellant.
    The plaintiffs bad no right to sue, and this is patent on tbe record.

      Blennerhassett & Shreve, for respondent.
   Ryland, Judge.

This was an action by plaintiffs, described as trustees of Ebenezer Chapel, against tbe defendant, before a justice of tbe peace. Judgment was given before said justice in favor of tbe defendant. Tbe plaintiffs appealed to tbe law commissioner’s court, where judgment was rendered for tbe plaintiffs for $12 50.

The record shows that no exception was taken to any act of tbe court below ; no bill of exceptions in tbe case ; no instructions asked ; no motion for a new trial; nor any thing saved whereby this court can be properly called upon to interfere. No reason whatever appearing for reversing this judgment, it, therefore, will be affirmed; tbe other judges concurring.