Baade v. Cramer

• Decision Date: 03 June 1919
• Citation: 213 S.W. 121,278 Mo. 516
• Parties: AUGUST BAADE et al. v. EMMA CRAMER et al., Appellants
• Court: Missouri Supreme Court

213 S.W. 121

278 Mo. 516

AUGUST BAADE et al. v. EMMA CRAMER et al., Appellants

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from St. Louis City Circuit Court. -- Hon. Glendy B. Arnold Judge.

Reversed and remanded.

Harry H. Haeussler for appellants.

(1) The holder of a negotiable not indorsed in blank by the payee is prima-facie the owner of it and he is presumed to hold it in good faith for value before maturity and without notice, and a purchaser from a party so in possession would obtain a good title. Miller v. Peoples Saving Bank, 193 Mo.App 498; Allen v. Harris, 79 Mo.App. 490. (2) A maker of a note secured by deed of trust who is sui juris may re-issue the paper before or after maturity for a valid consideration so as to bind himself and his assigns as effectively as in the first instance. Kelly v. Staed, 136 Mo. 430; Stater v. Hunt, 66 Mo.App. 528; Curry v Lafon, 133 Mo.App. 180; Devens v. Van Valkenburg, 192 Mo.App. 215. (3) The parties having left the note and deed of trust both uncancelled in the possession of a real estate agent whose business it was to negotiate loans and to sell same, clothed the agent with such authority as to bind them if the agent sold and re-issued said note and deed of trust to an innocent purchaser for value. (4) The extension of time of payment of the note secured by deed of trust at the request of the maker and with consent of the holder had the effect of extending the period of maturity of said note and a purchaser would take as a bona-fide holder for value before maturity. At least he would only take subject to any defense as between maker and payee, and not subject to any defense other than those connected with the note itself and not such as grow out of collateral transactions. Kelly v. Staed, 136 Mo. 436; Devens v. Van Valkenburg, 192 Mo.App. 215.

W. F. Heideman for respondents.

(1) Payment of the $ 1500 note by plaintiffs was a satisfaction of the mortgage securing the note; and failure to enter such satisfaction thereof on the margin of the record o fthe mortgage did not keep the mortgage in existence. Jackson v. Johnson, 248 Mo. 680; Hagerman v. Sutton, 91 Mo. 531; McNair v. Picotte, 33 Mo. 57; Land Co. v. Zeitler, 182 Mo. 251; Adams v. Carpenter, 187 Mo. 613; Hancock v. Whybark, 66 Mo. 672; Baker, v. Halligan, 75 Mo. 435; Strine v. Williams, 159 Mo. 582; Pease v. Pilot Knob Iron Co., 49 Mo. 128; Ward v. Hildebrand, 46 Mo. 284; Kennett v. Plumber, 28 Mo. 145; Lipscomb v. Talbott, 243 Mo. 31. (2) Extension of time of the payment of a promissory note for a definite period is a new contract. Matthews v. Towell, 138 S.W. 169; 20 Cyc. 208. (3) Contracts not to be performed within one year are within the Statute of Frauds. Sec. 2783, R. S. 1909; Schultz v. Tatum, 35 Mo.App. 136; Donovan v. Brewing Co., 92 Mo. 341; 19 Am. & Eng. Ency. Law (2 Ed.), p. 942; Hain v. Burton, 118 Mo.App. 586; Vanstone v. Hopkins, 49 Mo.App. 391; Browning v. Walbrun, 45 Mo. 477; Cunningham v. Williams, 43 Mo.App. 629; Ivory v. Murphy, 36 Mo. 534; Welsh v. Heim Brew. Co., 47 Mo.App. 608; Black & Snyder v. Crowther & Andriano, 74 Mo.App. 480. (4) It devolves upon the holder of a note to prove, by evidence aliunde the indorsements, that the indorsements purporting to be extensions of its payment were made before maturity, by either the maker thereof, his assignee or his duly authorized agent. Nance v. Hayward, 183 Mo.App. 219; McMahon v. Welsh, 132 Mo.App. 599; Hugumin & Co. v. Hinds & Weissgerber, 97 Mo.App. 352. (5) A party acquiring a note through an agent after its maturity, takes it subject to the equities then existing between the parties; and the principal is charged with notice of all the facts made known to the agent in the transaction. Livermore v. Blood, 40 Mo. 48; Kellogg v. Schnaake, 56 Mo. 136; Sec. 10022, R. S. 1909; 4 Am. & Eng. Ency. Law (2 Ed.), p. 306. (6) A party acquiring a promissory note from his own agent, who is negotiating it in breach of faith, or under circumstances amounting to fraud, is charged with notice of such breach or fraud. Sec. 10025, R. S. 1909. (7) Suit to determine title to real estate under Section 2535, Revised Statutes 1909, is an action at law, and if the findings of the trial court are sustained by substantial evidence, the same are binding on the appellate court. Walker v. Roberts, 204 S.W. 18; Hatton v. St. Louis, 264 Mo. 634; Kansas City v. Smith, 238 Mo. 334; Withers v. Railroad, 226 Mo. 396.

OPINION

WALKER, J.

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 grantors 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 check for the balance due, and a deed of trust securing the payment of the note. Crone thereupon had plaintiffs' deed of trust recorded. When Crone gave Toenges the recorded deed of trust and a certificate of title to the property, Toenges noticed that the deed of trust securing the $ 1500 note had not been released and called Crone's attention thereto. The latter then placed this memorandum on the certificate of title opposite the entry concerning the deed of trust: "Paid C. C. C.," and stated to Toenges that the deed of trust had then been released, but he had overlooked marking it off of the certificate. This, as was afterwards shown, was not true. Crone had theretofore sold to Emma Cramer, one of the defendants herein, a $ 2000 note secured by a deed of trust purporting to have been executed by one Woerler. Thereafter, on July 25, 1914, Crone called at Emma Cramer's residence and informed her that he then had two better deeds of trust aggregating $ 3000, which he would exchange for the $ 2000 note and deed of trust theretofore sold to her, she to pay him the difference. He showed her the Krehmeyer $ 1500, deed of trust which had been paid in full December 26, 1913, by plaintiffs, but which he had retained possession of without having it released, and another deed of trust for $ 1500, purporting to have been executed by one John Grundo. Emma Cramer accepted these notes and deeds of trust, surrendered to Crone the Woerler $ 2000 note and deed of trust securing the payment of same, and gave him in addition her check for $ 1000.

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, 1908. 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:

"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:

"$ 45, St. Louis, Mo., May 27, 1913. Twenty-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...