Baade v. Cramer

• Decision Date: 03 June 1919
• Docket Number: No. 19754.,19754.
• Citation: 213 S.W. 121,278 Mo. 516
• Parties: BAADE et al. v. CRAMER.
• Court: Missouri Supreme Court

213 S.W. 121

278 Mo. 516

BAADE et al. v. CRAMER.

No. 19754.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from St. Louis Circuit Court; Glendy B. Arnold, Judge.

Action by August Baade and others against Emma Cramer and others. From the judgment, the named defendant appeals. Reversed and remanded, with directions.

Harry H. Haeussler, of St. Louis, for appellant.

W. F. Heideman, of St. Louis, for respondents.

WALKER, J.

This is a suit to quiet title to certain real estate in the city of St. Louis, under section 2535, R. S. 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 $1,500, 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 $1,850. 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 $1,000 secured by a deed of trust on the land. Prior to this transaction, one Toenges had become the owner of the $1,500 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 $1,500 note for payment and the deed of trust securing same. When Toenges complied, Crone gave him plaintiffs' note for $1,000 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 $1,500 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 $2,000 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 $3,000, which he would exchange for the $2,000 note and deed of trust theretofore sold to her; she to pay him the difference. He showed her the Krehmeyer $1,500 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 $1,500 purporting to have been executed by one John Grundo. Emma Cramer accepted these notes and deeds of trust, surrendered to Crone the Woerler $2,000 note and deed of trust securing the payment of same and gave him in addition her check for $1,000.

The principal note, which had been made by the Krehmeyers to Behrend, and indorsed in blank by the latter to Toenges, is as follows:

"$1,500.00, 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 27th, 1911. Payment of within notes extended for two years from May 27th, 1911, provided the four interest notes dated May 27th, 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:

"$45.00. St. Louis, Mo., May 27th, 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. [Signed] Minnie Krehmeyer."

Indorsed: "Without recourse on me. [Signed] 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 $1,850, 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 $1,000; that C. C. Crone, as the agent of Mrs. Krehmeyer in the sale of the property, agreed to release the $1,500 deed of trust executed by Mr. and Mrs. Krehmeyer, and to pay off the note then held by Toenges with the $850 in cash paid by plaintiffs to Crone and the $1,000 note and deed of trust executed by them; that the first knowledge they had of Crone's failure to release the $1,500 deed of trust was in may, 1915, when various fraudulent transactions of Crone were brought to light.

Toenges' testimony in regard thereto is as follows: That he had been the owner from April, 1913, of the $1,500 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 $1,000 deed of trust executed by the Baades (the plaintiffs) and $500 in cash; that he was the owner of the $1,500 Krehmeyer note on May 27, 1913, when payment of same was extended for a period of three years from May 27, 1913; that an indorsement to that effect was placed on the principal note, and six semiannual 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 $1,000 note of Baade from Crone, he also received a certificate of title in which the $1,500 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 $1,500 note, testified as follows: That she was the widow of Henry Krehmeyer; that they had owned the property described in plaintiffs' petition, and she was the owner of same on May 27, 1913, and at the time of sale to August and Anna Baade, on December 24, 1913; that she and her husband had executed the note for $1,500 dated May 27, 1908, and identified their respective signatures to same; that on May 27, 1913, she requested an extension of the time of payment of said $1,500 note for a period of three years and executed renewal interest notes for the sum of $45 each and identified as hers the signature to each of same; that she paid said interest notes as they came due every six months; that she did not indorse any extension on the principal note, nor authorize same to be done.

The testimony of Emma Cramer, who purchased the $1,500 note of the Krehmeyers from Crone was as follows: That on June 24, 1914, she was the owner of a $2,000 note secured by deed of trust executed by one Woerler; that on July 25, 1914, at the request of C. C. Crone, she exchanged the Woerler note and deed of trust and $1,000 in cash for two notes of $1,500 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 $1,500 Krehmeyer note, nor did she have any knowledge of any transaction between Mr. C. C. Crone and Mr. Toenges in relation to same.

I. The extensions of the time of payment of the original note for $1,500 made by the Krehmeyers to John F. Behrend, and by him indorsed in blank to Robert L. Toenges, were made before the maturity of the note. The giving of the interest notes to cover the periods of extension constituted a sufficient consideration for the agreement to extend the time of payment. Johnson v. Grayson, 230 Mo. 380, 130 S. W. 673; Nelson v. Brown, 140 Mo. 580, ...