Bacon v. Theiss

• Decision Date: 30 December 1918
• Docket Number: No. 19491.,19491.
• Citation: 208 S.W. 254
• Parties: BACON v. THEISS et al.
• Court: Missouri Supreme Court

208 S.W. 254

BACON v. THEISS et al.

No. 19491.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Suit by George W. Bacon against George J. Theiss and others. From the judgment rendered, plaintiff appeals. Reversed and remanded, with directions.

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

Geo. W. & Clarence L. Wolff, of Clayton, for respondents.

BROWN, C.

This is a suit Instituted in the circuit court for St. Louis county to determine the title and interest of the respective parties in and to a tract of land containing something less than one acre with a dwelling house thereon, situate in said county. The petition is in the usual form in cases founded on section 2535 of the Revised Statutes of 1909, and was filed !December 1, 1914. The real controversy is between the plaintiff and the defendant Theiss. For answer he denies that plaintiff is owner in fee simple of the land described, and stated that whatever interest he has in it is subject to a deed of trust dated July 20, 1909, and duly recorded, by which one Charles E. Kelpe and wife conveyed it to secure the payment of a principal note of $1,100 of the same date, that said defendant acquired said note in due course and before maturity for value and that plaintiff acquired said land from said Kelpe and wife after execution of said note, which still remains due and unpaid.

In reply the plaintiff admits that he claims through the deed from Kelpe and wife, and the execution by them of the deed of trust and note described in the answer, and denies every other allegation of answer. He then pleads, both by way of payment and estoppel, the following facts, which we shall state as they appeared upon the trial:

On July 20, 1909, Charles E. Kelpe was the owner of the land, and with his wife, Lizzie, executed and signed the following note:

$1,100. St. Louis County, Mo., July 20, 1909.

"Three years after date, we promise to pay to the order of B. C. Stevens eleven hundred and no/100 dollars, at the office of B. C. Stevens, Clayton, Mo., for value received, negotiable without defalcation or discount, and with interest from maturity at the rate of eight per cent. interest per annum."

To this was attached six interest notes of the same date for $33 each, being interest at 6 per cent. per annum, and payable respectively at the end of each period of six months until the maturity of the note. These were secured by deed of trust on the land of the same date, which was duly recorded.

On December 29, 1910, the plaintiff, having purchased the land, went to the office of B. C. Stevens to have the deed prepared and make the transfer. Mr. Stevens was present. The purchase price seems from the evidence to have been $1,600. It was admitted upon the trial that the purchase was made in good faith, the plaintiff believing that he received a good title through the general warranty deed executed by Kelpe and wife and delivered to him. That the plaintiff then paid B. C. Stevens in his office $1,250.50, which was to be applied so far as necessary in full payment of the note and interest due at that time, is conclusively proven, and not disputed by any evidence or circumstance in the case. The deed then made was recorded December 21, 1911. The history of this note from that time until its maturity is involved in obscurity. It was evidently held by Mr. Wetzel, afterward vice president of the St. Louis County Bank, and sold by him to one Ruhl, and back through them to Mr. Stevens, the payee. Defendant Teiss is not clear when he purchased it, but seems sure that it was before maturity.

The note, as introduced in evidence, bears the following indorsement:

"Clayton, Mo., July 20, 1912. For value received the time of maturity of this note is extended four years from this date. B. C. Stevens, Real Estate and Loans, Clayton, Mo."

There were, when it was introduced in evidence, attached to it four interest notes for $33 each, dated July 20, 1912, payable respectively in 30, 36, 42, and 48 months after date, and signed "Charles E. Kelpe," and indorsed in blank "B. C. Stevens."

Mr. Stevens became totally insolvent, and made an assignment for the benefit of his creditors in September, 1914. Many indictments are pending against him, and he did not testify.

It is admitted that the name of Kelpe, as it appears upon the interest notes, dated July 20, 1912, is forged.

The following is the memorandum filed by the court for judgment:

"The court finds that the fee-simple title to the property described in the petition is vested in the plaintiff, William Bacon, and that same is subject to a deed of trust dated July 20, 1909, and of record in Book 235, page 328, of the St. Louis county recorder's office, to secure the payment of a principal note of $1,100, which note and deed of trust is held and owned by the defendant George J. Theiss."

No instruction or special findings were asked or given in addition thereto.

I. Although the question of estoppel in pais is suggested by the plaintiff in his pleading, the suggestion is founded upon the facts as we have briefly stated them, and we think that, so far as they are available as a defense to the claim asserted by the defendant, they are purely legal in their nature. Both parties stand upon their legal title to the relief asked by them respectively. No declaration of law having been asked or given, the judgment stands as the legal conclusion of the court upon the facts, and it is for us to determine whether it is supported by substantial evidence.

In doing this we shall assume that, at the time of purchasing the land, the plaintiff, in the presence of the maker of the note here in controversy, and at the place where said note by its terms was made payable, and for the purpose of paying and discharging the note and mortgage by which it was secured, gave to the payee the amount due on said note from money belonging to the maker as a part of the purchase price of the land then conveyed with covenants of warranty of the title. We make this assumption not only because the facts were proven by credible and unchallenged testimony, but also for the further reasons that it is expressly admitted in the record that the plaintiff was in that transaction acting in good faith, and believing that he was receiving a good title, which depended...