Christian v. Newberry
Supreme Court of Missouri
Appeal from Bates Circuit Court. A note given by a debtor for a pre-existing debt is no payment, unless the creditor expressly agrees to take it as payment, and to run the risk of its being paid. “ Nothing is considered as an. actual payment which is not in truth such.” (McDonald vs. Hulse, 16 Mo., 508; See also, Hil.
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Appeal from Bates Circuit Court. A note given by a debtor for a pre-existing debt is no payment, unless the creditor expressly agrees to take it as payment, and to run the risk of its being paid. “ Nothing is considered as an. actual payment which is not in truth such.” (McDonald vs. Hulse, 16 Mo., 508; See also, Hil. Mortg., 4th ed., p. 476.) There is in this case but one point, and that is, was the note given by Clary to French paid off and discharged by that given to Cowles? It was so found by the court, and that finding is abundantly sustained by the evidence.
1Opinion of the CourtHough, Judge
This was a petition for an injunction to restrain the defendant from selling, as trustee, certain real estate which he had advertised for sale, in pursuance of the provisions of a trust .deed, which, as was alleged, had been satisfied and extinguished by payment of the debt for which it was a security. A temporary injunction was granted, which was afterwards made perpetual by final decree, and defendant has appealed to this court.
On the 16th day of September, 1870, Zachariah Clary executed a trust deed for certain lands in Bates county, Mo., to secure the payment of a note for $448, dated…
2Cases cited3 opinions
- Hart v. Farmers & Mechanics BankSupreme Court of Vermont · 1860
- Burdett v. ClayCourt of Appeals of Kentucky · 1847
- Lippold v. HeldSupreme Court of Missouri · 1874
3Cited by8 opinions
- Crim v. CrimSupreme Court of Missouri · 1901
- The Farmers Bank of Clinton, Missouri v. Vance Julian, Trustee in Bankruptcy of Roby C. Woody, D/B/A Woody Motorcompany, BankruptCourt of Appeals for the Eighth Circuit · 1967
- Johnson v. JohnsonSupreme Court of Missouri · 1884
- Webb City Lumber Co. v. Victor Mining Co.Missouri Court of Appeals · 1899
- Bruegge v. BedardMissouri Court of Appeals · 1901
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