Routt v. Milner
Missouri Court of Appeals
Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge. Where a note is secured by a mortgage or deed of trust, and the holder of it, either by fraud or disregard of the debtor, sacrifices the security, such facts may be shown against an action on the note for the balance, and damages may be allowed by way of counterclaim, or the note may be canceled in equity.
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Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge. Where a note is secured by a mortgage or deed of trust, and the holder of it, either by fraud or disregard of the debtor, sacrifices the security, such facts may be shown against an action on the note for the balance, and damages may be allowed by way of counterclaim, or the note may be canceled in equity. Doivard v. Ames, 3 Met. 311; Sab&r v. Stickney, 9 Yt. 164; Lowell v. North, 4 Minn. 32; Jencks v. Alexander, 11 Paige, 619; 2 Perry on Trusts [3 Ed.], sec. 602o. In equity and good conscience it was the duty of Sheppard…
1Opinion of the CourtRombauer, P. J.
— The plaintiff sold certain real estate to the defendant, subject to an incumbrance of $750 which was evidenced by the plaintiff’s notes secured by deed of trust on the premises conveyed. By the terms of the sale the defendant assumed the payment of this incumbrance as part of the purchase money for the land conveyed to him. When the notes matured, the defendant failed to pay them. The property was duly advertised for sale under the deed of trust, and sold by the sheriff as trustee at such sale to one Bone for $25, such sale realizing a net balance of $6, which was applied as a credit on the…
2Cases cited6 opinions
- Rogers v. GosnellSupreme Court of Missouri · 1873
- Earl v. HartSupreme Court of Missouri · 1886
- Kitchen v. Cape Girardeau & State Line RailroadSupreme Court of Missouri · 1875
- Cress v. BlodgettSupreme Court of Missouri · 1877
- DeJarnette v. DeGivervilleSupreme Court of Missouri · 1874
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Byrne v. CarsonMissouri Court of Appeals · 1897
- Kingman & Co. v. HillMissouri Court of Appeals · 1897