Bacon v. Reichardt

• Decision Date: 30 December 1918
• Docket Number: No. 19492.,19492.
• Citation: 208 S.W. 24
• Parties: BACON v. REICHARDT et al.
• Court: Missouri Supreme Court

208 S.W. 24

BACON v. REICHARDT et al.

No. 19492.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit to quiet title by George W. Bacon against Henry Reichardt and others. From a judgment for defendant Reichardt, plaintiff appeals. Reversed, and cause remanded, with directions to set aside judgment, and to enter decree for Plaintiff.

This suit was brought in the ell cult court of St. Louis county, Mo., on December 1, 1914, under section 2535 Rev. St. 1909, to quiet title to the land described in petition, located in said county. It is alleged in petition that plaintiff is the owner of said land in fee simple and that defendants claim and assert some title, estate, or interest in said land. The court is asked to ascertain and determine the title to same.

Defendant Henry Reichardt, in his separate answer, denies that plaintiff is the owner in fee of the land aforesaid. He further alleges, and the reply admits, that on October 14, 1905, John W. Corless and wife conveyed the real estate described in petition to W. H. Roth's trustee, W. H. Barnes, to secure the principal note of $1,100, dated October 12, 1905, due in five years from date, and five interest notes executed therewith; that said deed of trust was filed for record on October 17, 1905, and recorded in Book 168, at page 442, in the recorder's office of said county. Said answer alleges, and the reply admits, that at the time of the execution of said deed of trust the said. John W. Corless and wife were the fee simple owners of said land. Said answer further alleges that defendant Henry Reichardt became the legal holder for value, in due course, of the said deed of trust, and all notes executed in connection therewith, and is now the holder and owner thereof; that the debt secured by said deed of trust is now due and unpaid, and that said deed of trust is a first lien on said land. He concludes said answer by asking to be discharged, with his costs.

The reply to said answer alleges, after admitting the facts heretofore recited, that upon the maturity of said notes, and the deed of trust securing them, payment in full was made to the then legal owner and holder thereof. Plaintiff denied every other allegation in said answer, and prayed judgment in accordance with the prayer of his petition.

The case was tried without a jury and without instructions. The trial court found the issues for defendant Henry Reichardt, and entered its judgment accordingly. At the time of the rendition of said judgment, the trial court filed a statement of the facts found by it from the evidence in the case, and which is set out in the abstract of record. The portion of said memorandum relating to the facts, reads as follows:

"The principal note secured by the deed of trust in question was payable to W. H. Roth, and ran for five years from October 12, 1905. At the end of that time it was extended for two years, without any indorsement thereof, and new interest notes for that period were given. It remained in the control of Roth, although indorsed by him in blank and owned by one of his clients.

"When the period of extension was about to expire, and about six or seven days before the time therefor, the plaintiff took $400 in money, with the interest, to one B. C. Stevens and (as plaintiff testifies not very satisfactorily) gave him a new deed of trust for $700, a id arranged with Stevens that he was to pay the $1,100 and the interest due on the original deed of trust on the day it became due according to the extension. Plaintiff paid nothing on the note himself, but furnished some of the money and gave a deed of trust to Stevens for the balance, and Stevens agreed to pay the note.

"Stevens failed to pay the note at maturity, but waited several months, till it was demanded of plaintiff by Roth, and then paid to Roth the amount of principal and interest and took the note as it then was, indorsed in blank by Roth, without having the same marked canceled or paid. This was done at the request of Stevens, with the consent of Roth, in order, as Stevens said, that he might make some settlement with Bacon. In April, 1913, Stevens sold the principal note, with six new interest notes, to which the name of plaintiff had been forged, to the defendant Reichardt for $1,100.

"It is clear from the foregoing that plaintiff furnished part of the money to pay the note and obligated himself to Stevens for the balance of it, and Stevens agreed to make payment for plaintiff. It is also clear that Stevens, in breach of his duty, did not pay the note, but intentionally and expressly took a transfer or assignment of it by delivery to himself, indorsed in blank by the payee, and thus kept it alive as an existing indebtedness. Roth did not know the extent of Stevens' authority, or that he was acting as agent for plaintiff, or using plaintiff's money, or money which Stevens owed plaintiff.

He was informed that Stevens would `take up' the note. It is not shown that the money used was in fact plaintiff's money. In the several months that had intervened, Stevens may have mingled the $400 furnished by plaintiff and the 1$700 which he raised or owed for plaintiff's deed of trust with other moneys, and may have used the same in other deals as real estate agent, leaving to plaintiff nothing but an obligation for so much money."

We do not find anything in the record tending to show that Roth indorsed the note in controversy in blank before delivering same to Stevens. But, as the note itself was introduced in evidence, we presume the court obtained the above information from an inspection of the note. We think the foregoing facts, as found by the court, are substantially sustained by the record before us.

On June 1, 1915, the court rendered its decree herein, declaring that the fee-simple title to the land described in petition is vested in plaintiff, subject to the deed of trust described in the answer of defendant Reichardt, and that the latter is the legal owner and holder of said deed of trust and the note which it was executed to secure.

Plaintiff, in due time, filed his motion for a new trial, which was overruled, and the cause duly appealed by him to this court.

L. E. Richardson, of St. Louis, for appellant.

Amandus Brackmann, of St. Louis, for respondents.

RAMEY, C. (after stating the facts as above).

The facts as found by the trial court, as well as the testimony in the case, established the fact that the $1,100 note and deed of trust were sold and delivered by Stevens to defendant Reichardt in April, 1913, after the above note became due on October 12, 1912. Reichardt, having purchased the $1,100, note after its maturity, from Stevens, holds the same subject to any equities or defenses which plaintiff might have interposed, had he been sued upon said note by B. C. Stevens. In other words, Reichardt occupies the same position in respect to above matter, as Stevens would have occupied, had he remained in possession of said note and deed of trust and were attempting to recover from plaintiff said amount. Sections 10022, 10025 and 10028, H. S. 1909; Wheeler v. Barret, 20 Mo. 573; Mattoon v. McDaniel, 34 Mo. loc. cit. 140; Chappell v. Allen et al., 38 Mo. loc. cit. 221; Kellogg v. Schnaake, 56 Mo. loc. cit. 138; Ford v. Phillips, 83 Mo. loc. cit. 530; Julian v. Calkins, 85 Mo. loc. cit. 206, 207; Turner v. Hoyle, 95 Mo. loc. cit. 345, 8 S. W. 157; Bishop v. Chase, 156 Mo. loc. cit. 173, 56 S. W. 1080, 79 Am. St. Rep. 515.

Under the above authorities, plaintiff's plea of payment, if sustained by the evidence, is a good defense against the $1,100 note and deed of trust held by defendant Reichardt as a purchase after maturity.

II. Having shown in the preceding proposition, that Reichardt became the owner of the $1,100 note after its maturity, the plaintiff is entitled to show in this action, if he can., that said note was paid in full by Stevens to Roth, at the time the latter delivered the same to Stevens. If it was so paid, the plaintiff is entitled to maintain this action, and have himself declared to be absolute owner of the land in controversy, free from the lien of said $1,100 note and deed of trust.

It is undisputed that Corless and wife were the makers of the $1,100 note and deed of trust in controversy. They sold the land to...