278 Mo. 516 | Mo. | 1919
This is a suit to quiet title to certain real estate' in the City of St. Louis, under Section 2535, Revised Statutes 1909. Upon a trial, there was a judgment for the plaintiffs, from which defendants appeal.
■ Henry Krehmeyer and his wife, Minnie, the former now deceased, were on the 27th of May, 1908, the owners in fee of the real estate, consisting of a lot on Lee Avenue, in the City of St. Louis, as tenants by the entirety. On said date Krehmeyer conveyed this lot to F. W. Herbkesmann, in trust for John F. Behrend, to secure a note to the latter for $1500, then made by gram tors to him, due three years after its date, with semiannual interest notes covering the period of the loan. This deed of trust was recorded in the Recorder’s office of the City of St. Louis.
On December 24, 1913, the Krehmeyers, through an agent, one Chas. C. Crone, sold said lot to plaintiffs and conveyed same to them by a deed of general warranty for the sum of $1850. Of this amount, $50 was then paid to Crone by plaintiffs as earnest money. Two days later, December 26, 1913, they gave Crone their check for $800, and their joint note for $1000, secured by a deed of trust on the land. Prior to this transaction one Toenges had become the owner of the $1500 note and deed of trust securing same, made by the Krehmeyers to Behrend. Upon the consummation of the sale of the lot to plaintiffs, Crone notified Toenges and requested him to surrender the $1500 note for payment and the deed of trust securing same. When Toenges complied, Crone gave him plaintiff’s note for $1000 and his personal cheek for the balance due, and a deed of trust securing the payment of the note. Crone thereupon had plaintiffs ’
The principal note, which had been made by the Krehmeyers to Behrend, and indorsed in blank by the latter to Toenges is as follows:
“$1500.00. St. Louis, Mo., May 27,190-8. Three years after date we promise to pay to the order of John F. Behrend fifteen hundred dollars, value received at the office of C. C. Crone, in St. Louis, with interest at the rate of eight per cent per annum from maturity. Henry Krehmeyer. Secured by Deed of Trust. Minnie Krehmeyer.” (Indorsed): “John F. Behrend.”
On the back of same there appeared two extensions of payment in the following words:
*523 ‘ ‘ St. Louis, May 27, 1911. Payment of within notes extended for two years from May 27, 1911, provided the four interest notes dated May 27, 1911, each for forty-five dollars executed by Hy. and Minnie Krehmeyer, and payable to the order of James P. Wilton in six, twelve, eighteen and twenty-four months and given for said extension, be promptly paid when due.
“St. Louis, May 27, 1913. Payment of within note extended for three years from May 27, 1913, provided the six interest notes dated May 27, 1913, each for forty-five dollars executed by Minnie Krehmeyer and payable to the order of James P. Wilton in six, twelve, eighteen, twenty-four, thirty and thirty-six months and given for said extension, be promptly paid when due.”
The interest notes given upon the extensions of the payment of the principal note, except as to differences in their dates and times of payment, are as follows:
“$15, St. Louis, Mo., May 27, 1913. TAventy-four months after date I promise to pay to the order of James P. Wilton forty-five dollars, value received at office of C. C. Crone, in St. Louis,-with interest at the rate of eight per cent per annum from maturity. Secured by deed of trust. Minnie Krehmeyer.” Indorsed: “Without Recourse on Me. James P. Wilton.”
August Baade, one of the plaintiffs, testified as follows: That he and his wife bought the property described in their petition from Mrs. Krehmeyer through her agent, C. C. Crone; that a warranty deed was executed to them by Mrs. Krehmeyer, December 25, 1913, in which the deed of trust theretofore executed by her and her husband on May 27, 1908, was not mentioned. That the price paid for said property by them was $1850, made up of $850 in cash and a deed of trust executed by them to Mrs. Krehmeyer at the time of the purchase of the property to secure the payment of a principal note in the sum of $1000; that C. C. Crone, as the agent of Mrs. Krehmeyer in the sale of the property, agreed to release the $1500 deed of trust executed by Mr. and Mrs. Krehmeyer, and to pay off the note then
Toenges’ testimony in regard thereto is as follows: That he. had been the owner from April, .1913, of the $1500 note executed by Minnie and Henry Krehmeyer, dated May 27,1908; that he surrendered all of the papers pertaining to said loan with the exception of the principal note to C. C. Crone on December 22, 1913, and later on January 22, 1914, surrendered said principal note to C. C. Crone in exchange for the $1000 deed of trust executed by the Baades (the plaintiffs), and $500 in cash. That he was the owner of the $1500 Krehmeyer note on May 27, 1913, when payment of same was extended for a period of three years from May 27, 1913, and that an indorsement to that effect was placed on the principal note and six semi-annual interest notes executed by Minnie Krehmeyer, were delivered to him and he consented to said renewal. That, after said renewal, he collected one interest note, and on January 22, 1914, surrendered the remaining five interest notes with the principal note to C. C. Crone. That when he received the $1000 note of the Baades from Crone, he also received a certificate of title in which the $1500 deed of trust was still shown as unreleased on the record, and upon objection to same by him, and a demand that it be released, Crone indorsed on said certificate of title opposite said memoranda of deed of trust: “Paid C. C. C.”
Mrs. Krehmeyer, one of the original payees in the $1500 note, testified as follows: That she was the widow of Henry Krehmeyer; that they had owned the property described in plaintiffs’ petition and that she was the owner of same on May 27, 1913, and at1 the time of sale to August and Anna Baade, on December 24, 1913. That she and her husband had executed the
The testimony of Emma Cramer who purchased the $1500 note of the Krehmeyers from Crone, was as follows: That on June 24, 1914, she was the owner of a $2000 note secured by deed -of trust executed by one Woerler; that on July 25, 1915, at the request of C. C. Or one, she exchanged the Woerler note and deed of trust and $1000 in cash for two notes of $1500 each, one executed by John Grundo, and the other by Mrs. Krehmeyer and secured by deeds of trust; that at the time of said purchase C. C. Crone made out a statement of the transaction, which statement witness identified. Witness further stated that at the time, July 25, 1914, she had no knowledge of any payment of the $1500 Krehmeyer nóte, nor did she- have any knowledge of any transaction between Mr. C. C. Crone and Mr. Toenges in relation to same.
In Stillwell v. Patton, 108 Mo. l. c. 363, it was contended by appellant that the court erred in not instructing the jury in addition to other formal requirements necessary to a recovery, that they must find that the original payee had indorsed or assigned the note to the plaintiff. It appeared that this fact had not been pleaded and the real issues were, therefore, only to be determined by an examination of the evidence. The
In Morris v. Case, 4 Kan. Ct. App. 691, under á state of facts similar to those at bar, the court held in effect, that the failure ■ by the plaintiff to atempt either by plea or proof to controvert the indorsement may be construed to mean that an absence of indorsement or a failure to establish same was not relied on to sustain the action. The contention, however, may be disposed of under a more general rule of procedure. Not only within the contemplation of the statute (Sec. 2081, R. S. 1999.), but under repeated judicial rulings, is it established that a review upon appeal will be limited to question's arising in the trial court, which have been properly saved for consideration. [In re Birmingham Drain. Dist. v. Railroad, 266 Mo. 60, 178 S. W. 893; In re Aiken, 262 Mo. 403, 171 S. W. 342; Kirksville v. Ferguson, 262 Mo. 661; Ice Co. v. Kuhlmann, 238 Mo. 685.] The application of this rule is appropriate here and constitutes a sufficient basis for a ruling adverse to plaintiffs’ contention.
The trial of the case without a reply, no objection to its absence being interposed, and the consequent presumption that it was filed and constituted a general denial (McMurray v. McMurray, 258 Mo. l. c. 416; Brewster v. Land Imp. Co., 247 Mo. l. c. 226; Bird v. Fox, 193 S. W. [Mo.] 941) does not militate against the correctness of the conclusion that the quantum óf proof necessary to establish the authenticity of the indorsement was in any wise made an issue in the case As
Under the facts at bar, the general rule thus announced is applicable, that the assignment of a note passes the interest in a deed of trust given to secure the payment of same. While it is true that the security can have no separate existence apart from the debt and expires when the latter is paid, payment is not presumed to have been made where the facts are, as in
The plaintiffs knew, or could have known, by the exercise of that care which should characterize a transaction of this nature, of the existence of the deed of trust securing the note which they paid in effecting the'