Paddock-Hawley Iron Co. v. McDonald
Missouri Court of Appeals
Appeal from the Daviess Circuit Court.—Hon. E. • J. Broaddus, Judge. (1) There is no ground upon which plaintiff’s action can be sustained, unless it is on the principle of marshaling assets, and the theory that McDonald’s homestead rights were waived in favor of his general creditors by giving the mortgage to Daviess county. The waiver of the homestead in favor of the mortgagee is not a general waiver, opening the door to all the creditors.
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Appeal from the Daviess Circuit Court.—Hon. E. • J. Broaddus, Judge. (1) There is no ground upon which plaintiff’s action can be sustained, unless it is on the principle of marshaling assets, and the theory that McDonald’s homestead rights were waived in favor of his general creditors by giving the mortgage to Daviess county. The waiver of the homestead in favor of the mortgagee is not a general waiver, opening the door to all the creditors. The usual release clause is understood to be made with reference only to the mortgagee of the instrument though not confirmed to him in terms. "Waples on…
1Opinion of the CourtSmith, P. J.
—This is a proceeding in equity by
judgment creditors to reach a certain fund in the *563hands of a trustee and subject the same to the payment of their claims. The case may be shortly stated thus:
Defendant McDonald, in August, 1892, mortgaged his homestead, situated in the city of Gallatin, to the county of Daviess, to secure two school bonds, executed by him to said county, for about $1,500, with certain persons as sureties thereon.
A year later, McDonald, finding himself in an insolvent condition and no longer able to carry on the hardware business in which he was then engaged, executed a deed…
2Cases cited26 opinions
- Boyce's Executors v. GrundySupreme Court of the United States · 1830
- Miller v. SherrySupreme Court of the United States · 1865
- Board of Public Works v. Columbia CollegeSupreme Court of the United States · 1873
- Pendleton v. PerkinsSupreme Court of Missouri · 1872
- Adsit v. . ButlerNew York Court of Appeals · 1882
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3Cited by5 opinions
- Buckley v. MaupinSupreme Court of Missouri · 1939
- Sandige v. HillMissouri Court of Appeals · 1897
- Speer v. Home Bank of Forest CityMissouri Court of Appeals · 1918
- Morris v. McMahanMissouri Court of Appeals · 1898
- State ex rel. Fields v. CrytsMissouri Court of Appeals · 1901