Hendricks v. Woods , 79 Mo. 590 ( 1883 )

Sherwood, J.

This was an equitable proceeding to enjoin a sale of land under a deed of trust. Upon final hearing the, injunction prayed was made perpetual. The chief feature of the case was whether a certain $300 had been paid the sheriff’, Collier, to be applied on the execution issued in favor of Rowland, the nominal plaintiff' in the execution. The money referred to had been paid, it seems, in the first instance to one Leonard Bobbin, then clerk of the circuit court of Shelby county, and the question was whether Collier had received the money at the time the execution was in his hands. Upon this point there was direct conflict. There was some testimony tending to show that Hendricks, the defendant in the execution, was rather hurriedly drawn into the execution of the note and deed of trust; the note representing the $300 and interest. And there was testimony tending to show that Hendricks was fully apprised of the second coming of Smith, the beneficial owner of the judgment, who, it seems, had been to see Hendricks, a week before on the subject of securing the debt. As to the prior visit of Smith, there is no conflict of testimony. It has been our custom, even in cases of equitable cognizance, to defer somewhat to the findings of the trial court. This consideration as well as the evident conflict of testimony, as to the payment of the money to the sheriff, has induced my associates to approve the finding and ruling of the circuit court. From this view, by what I regard as the great preponderance of the evidence, especially the entries in the execution docket, and the alterations in indorsements on the execution made by Leonard Bobbin, as he himself admits, as well as the change in the date of the issuance of the execution made, as sworn by Collier, in Dobbin’s handwriting, I am constrained to differ from my associates. Moreover, I think that the giving of the note and deed of trust, notwithstanding the $300 may have been paid the sheriff may well be upheld as being the compromise of a disputed or doubtful claim. 1 Parsons Notes and Bills, 196, et seq., and cases cited. As my associates, however, take a different view of this matter, and regard the payment or non-payment of the money to the sheriff as the dominating question in this case, and think that an unfair advantage was taken of Hendricks at the time the note was given and deed of trust made, the judgment must be affirmed,

in which affirmance all concur except myself.