Wolz v. Parker

Bukgess, J. This is a suit to enjoin a trustee’s sale. Defendants demurred to the petition which was overruled, and defendants refusing to plead further judgment was rendered for plaintiff perpetuating the injunction, and defendants appealed. [463] The facts are as follows: In December, 1892, defendant Moberly sold to John R. Dennis a tract of land containing two hundred and twenty acres in Grundy county, Missouri, at the price of $3,950, a part of which was paid in cash, and for the balance Dennis executed his promissory notes, one for $400, due May 18, 1893; one for $250, due April 15, 1894, and thirteen other notes one falling due every twelve months thereafter. At the time of the execution of the notes, defendant Moberly executed to Dennis a warranty deed for the land, and he in return, his wife joining with him, executed a deed of trust on the same land to defendant Parker as trustee to secure the payment of all of said notes. By the terms of the deed of trust it is provided that if default be made by said Dennis in the payment of the notes secured thereby or the interest, or any part thereof, when the same becomes due and payable, the whole amount secured thereby, both principal and interest, should become due and payable. The first note became due, May 18, 1893, and was paid by Dennis in January, 1894. In May, 1893, a verbal agreement was entered into between Dennis and Moberly to the effect that if Dennis would pay the first note, that is, the $400 note, in January, 1894, that the time of payment of the next note would be extended until the fall of 1894. On the tenth day of October, 1894, Dennis sold and conveyed by deed of general warranty all, of said land to plaintiff. Thereafter, on the eleventh day of October, 1894, plaintiff tendered to defendants the full amount of said $250 note, and interest then due according to its terms, but they refused to receive the same unless the full amount of all the notes secured by said deed of trust, including interest, was paid, and said defendant Parker advertised the land for sale on the [464] seventh, day of .November, 1894. Plaintiff then procured an injunction restraining him from proceeding with the sale. f It appears from the allegations in the petition, that there was no consideration for the promise by defendant Moberly to Dennis to extend the time of payment of the second note that became due. The promise was made subsequently to the execution of the notes, and was only that which Dennis was at the time legally bound to do, hence no consideration. 1 Parsons, Cont. [7 Ed.] *437; 3 Am. and Eng. Encyclopedia of Law, 834, and authorities cited. Thei’e is no averment of a promise by Dennis to pay the interest in advance, or an increased rate of interest, or of any new consideration which was necessary in order to give such a contract any obligatory effect. A contract for forbearance after the debt is contracted to a date named after maturity of a note, for a new consideration, is a new contract, and binding upon the parties thereto. Warner v. Campbell, 26 Ill. 282; Dickerson v. Commissioners, 6 Ind. 128; Wright v. Bartlett, 43 N. H. 548; Clarkson v. Creely, 35 Mo. 95; Royal v. Lindsay, 15 Kan. 591; Bank v. Mallett, 34 Me. 547; Williams v. Scott, 83 Ind. 405; Hubbard v. Ogden, 22 Kan. 363; Preston v. Henning, 6 Bush (Ky.), 556; Mfg. Co. v. Bradley, 105 U. S. 175. But no such contract was made between Dennis and Moberly. Plaintiff having acquired by deed Dennis’ equity in the land, has the right to pay either one or all of the notes given by him for the purchase money as they become due (Lapsley v. Howard, 119 Mo. 489), and the only question is, as to his right to pay off the one note due at the time he made the tender under the provisions of the deed of trust by which all the notes [465] described therein became due, in default of the payment of any one of them according to its terms and conditions as provided thereby, and thus prevent the sale of the land by the trustee in said deed. A similar question was before this court in Whelan v. Reilly, 61 Mo. 565, in which the deed of trust under consideration in that case provided that in case of default in the payment of the interest notes, of which there were a number, then the whole debt should become due and payable, etc. On default made in the payment of two of the interest notes when they became due the trustee in the deed of trust advertised the property covered by said deed for sale to pay all the notes. And before the day of sale a tender was made to the trustee of a sufficient amount to pay the interest notes then due and the costs up to that time, which the trustee refused unless the principal note was paid, and proceeded to sell the property. It was held, in a suit by the grantor in the deed of trust to set aside the sale, that default in the payment of the interest notes was cured by .the tender made, and the sale was without authority and illegal. That case was followed and approved in Philips v. Bailey, 82 Mo. 639, and its correctness has never been called in question. There is no difference in principle between the Whelan case, and the one in hand. The only difference being, in that case default was made in the payment of the interest notes, while in this, default was made in the payment of one of the principal notes. If the sale could be set aside as was done in that case, on the ground that the tender before sale cured the default, we can conceive of no reason why injunctive relief should not be granted under similar circumstances, and thereby avoid the necessity of an action to set aside the sale. The judgment is affirmed. Gantt, P. J., and Sherwood, J., concur.