HOSTETTER, Presiding Judge.
This suit was begun in the circuit court of the city of St. Louis on the 9th day of January, 1935, by the filing of a petition, which, caption and signatures omitted, is as follows:
"Plaintiff states that he and defendants are residents of the city of St. Louis and State of Missouri.
"Plaintiff for his cause of action states that on and before the 19th day of January, 1927, the Franciscus Realty Company was a corporation duly organized and doing business under the laws of Missouri and maintaining its principal place of business in the city of St. Louis; and that said Franciscus Realty Company was engaged in the purchase and sale of loans secured by first deeds of trust on real property situate in the City and County of St. Louis, Missouri.
"Plaintiff further states that on or about said 19th day of January, 1927, he purchased from said Franciscus Realty Company a note in the principal sum of eight thousand dollars ($8,000.00), executed on January 9, 1924, by one Paulina Smith, and which note was secured by a first deed of trust executed by said Paulina Smith on property belonging to her and being situate in city block 5051 B of the City of St. Louis, Missouri, fronting eighty-five feet eight and three-fourths inches (85' 8¾") on the south line of Washington Boulevard in said City of St. Louis, Missouri, together with improvements situated thereon; that plaintiff purchased said note so secured for the sum of eight thousand dollars ($8,000.00) upon the representation by said Franciscus Realty Company; that all taxes, both general and special, due on said property had been paid, and that there were no liens or claims of any kind of record against the same, saving and excepting the deed of trust which had been executed to secure said note of eight thousand dollars ($8,000.00); that, thereafter, towit, on or about the 9th day of January, 1930, said note so secured by said deed of trust was renewed for an additional period of three (3) years upon the representation made by said Franciscus Realty Company to plaintiff herein that there were no taxes, either general or special, outstanding against said real property given to secure said loan, and that said real property was free and clear of all liens, saving and excepting said note for eight thousand dollars ($8,000.00) so secured by said first deed of trust.
"Plaintiff further states that on or about the 20th day of May, 1933, by reason of the failure of said Paulina Smith to pay said note so executed by her in the sum of eight thousand dollars ($8,000.00), said real property was foreclosed by this plaintiff and purchased by Stella Green, a single woman, at foreclosure sale for the sum of three thousand dollars ($3,000.00), for the use and benefit of plaintiff, and that said property is in truth and in fact the property of plaintiff; that said Stella Green has executed a quitclaim deed for said property to plaintiff, and which quitclaim deed is in plaintiff's possession.
"Plaintiff further states that at the time said note for eight thousand dollars ($8,000.00), so secured by said deed of trust, was purchased by him, there was outstanding against the property described in said deed of trust a special tax bill for the improvement of Lake avenue and covering the property described in said deed of trust, and that there remains due on this day on said property special taxes amounting to nine hundred two dollars and twenty-four cents ($902.24).
"Plaintiff further states that said special tax bill was also in force and outstanding at the time of the renewal of said loan on January 9, 1930, and at which time said Franciscus Realty Company again represented to plaintiff that there were no taxes, either special or general, outstanding against said property.
"Plaintiff further states that said special taxes constitute a lien against said property, and that plaintiff will not obtain free and clear right and title to said property until said taxes are paid and satisfied.
"Plaintiff further states that he had no knowledge at the time of the purchase of said note of eight thousand dollars ($8,000.00) or at the time of its renewal of such special taxes being due thereon, and
that he had no knowledge of the existence of said special tax bill until after the foreclosure of said property and after he had become the owner thereof in the manner hereinbefore set out; and that he purchased said loan upon the representation made to him by said Franciscus Realty Company that said property was free and clear of liens and that there were no taxes, either general or special, outstanding against the same, and that he made such purchase and renewed said loan relying upon said statement of said Franciscus Realty Company, with whom plaintiff had been dealing for many years past.
"Plaintiff further states that the charter of said Franciscus Realty Company has been forfeited and that defendants, John S. Leahy, John Franciscus and James M. Franciscus, Jr., are the surviving officers and directors of said Franciscus Realty Company, and as such are winding up, as trustees, the affairs of said Franciscus Realty Company and are in charge of all of the assets of said company.
"Plaintiff further states that said Paulina Smith, the maker of said note, is insolvent.
"Wherefore, plaintiff states that he has been damaged in the sum of nine hundred two dollars and twenty-four cents ($902.24), and prays judgment in said sum against said defendants, together with his costs."
The answer is as follows:
"Come now the defendants and in further answer to the petition filed herein admit that on and before January 19, 1927, Franciscus Realty Company was a Missouri corporation, engaged in the purchase and sale of loans secured by first deeds of trust on real property situate in the City and County of St. Louis, Missouri; further answering defendants deny each and every other allegation in said petition contained.
"For further answer to the petition of the plaintiff, defendants state that the cause of action set forth in said petition did not accrue within five years next before the commencement of this action.
"Wherefore, having answered, defendants pray to be discharged with their costs."
The defendants are the last officers and members of the board of directors of the Franciscus Realty Company in charge of and winding up its business and assets, the corporation having, shortly prior to the institution of this suit, forfeited its charter, and had been judicially dissolved.
At the trial of the cause, which was had on the 6th day of June, 1935, a jury was waived, and the case was heard by the trial court, and, on January 6, 1936, the court, of its own motion, found the issues in favor of the defendants and against the plaintiff and rendered its judgment accordingly, and, after an ineffective motion for a new trial, plaintiff brings the cause to this court by appeal for review.
No testimony was offered by the defendants. All of the testimony given in the trial of the case was that given by and on behalf of the plaintiff.
No instructions were asked by either side and none given by the court of its own motion, and no findings of fact were made by the court.
There is no dispute about the facts. Counsel for plaintiff assert in their statement the following: "The facts are undisputed." Counsel for defendants at the close of the testimony given, on direct examination of Louis Maginn, the only witness called in the case, made this statement, viz.: "I think the defendant will admit that there is now — if you will give me the bill I will make the admission, it is a fact, there is not much dispute about the facts, it will be admitted by the defendants that on the 3rd day of August, 1925, the special tax bill was issued by the City of St. Louis against the real estate described in plaintiff's petition in the sum of $655.71 on account of paving of Lake avenue from Delmar boulevard to Waterman avenue, and that that tax bill with interest up to the present time amounts to the sum of blank dollars; you can figure it up and insert it in the record, and that that tax bill is still outstanding and unpaid. You can figure out the interest." (The interest in question amounted to $387.62, bringing the total amount due to $1,043.33.)
Louis Maginn testified that he was in the real estate business and was with the Franciscus Realty Company in 1927, and had business dealings with Mr. Herman Batavia; that he had a copy of a statement dated January 19, 1927, by which the Franciscus Realty Company sold to Mr. Batavia a deed of trust of Paulina Smith, dated January 9, 1924, covering property at 5164 Washington avenue.
Witness then identified the deed of trust executed by Paulina Smith and recorded January 23, 1924, together with a note of $10,000, dated January 9, 1924, and which note was, at the time of its sale by the Franciscus Realty Company to Mr. Batavia, reduced to $8,000, and identified a renewal interest note dated January 9, 1933, and given on the principal note of $8,000. Witness then identified the principal note originally in the sum of $10,000, which note matured on January 9, 1927.
Witness stated that on January 9, 1927, this principal note of $10,000 was renewed for 3 years, maturing January 9, 1930; that the Franciscus Realty Company negotiated or renewed the said loan; that the loan was sold to...
