Deicke v. Roudebush

• Decision Date: 02 April 1940
• Docket Number: No. 25282.,25282.
• Citation: 138 S.W.2d 678
• Parties: DEICKE v. ROUDEBUSH et al.
• Court: Missouri Court of Appeals

138 S.W.2d 678

DEICKE v. ROUDEBUSH et al.

No. 25282.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

Rehearing Denied April 16, 1940.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Minnie J. Deicke against George S. Roudebush, successor trustee, John J. Dowling and Mrs. Edgar Carson to enjoin negotiation of a promissory note and deed of trust and for the cancellation of the note and discharge of deed of trust. From an adverse judgment, plaintiff appeals.

Affirmed.

Karl P. Spencer and Suelthaus & Krueger, all of St. Louis, for appellant.

Calhoun & Boisseau, of St. Louis, for respondents.

HUGHES, Presiding Judge.

By this action in equity plaintiff seeks to enjoin the negotiation of a promissory note and deed of trust securing the same on property belonging to her and known as 5906 Wabada Avenue, St. Louis, Missouri, and for the cancellation of the note and discharge of the deed of trust as a lien against the property. After trial in the circuit court injunction was denied and plaintiff's bill dismissed, and after denial of motion for new trial she appeals.

The note and deed of trust securing it are the property of defendant, Mrs. Edgar Carson, who acquired them by purchase from the John J. Dowling Realty Company, who had recently purchased them from Mr. Luke Hart. About the first of July, 1937, John J. Dowling received a telephone message from Frank L. Dittmeier to the effect that Mr. Hart had a deed of trust he was desirous of selling on 5906 Wabada Avenue. Mr. Dowling viewed the property and placed an appraisal on it of $5,500. He purchased the note after an inspection of it and the accompanying papers, which showed it to be a note originally for the sum of $4,250 payable to G. H. Dudley, dated June 14, 1923, and due three years after date, and signed by Fred Slobright, and with endorsements on the back thereof as follows:

"Without recourse on me. G. H. Dudley."

June 17, 1926. By payment of $2000.00 this note is reduced thereby to $2250.00— which is renewed to come due June 14, 1929, provided six new interest notes each for $67.50 dated June 14, 1926, due in six, twelve, eighteen, twenty-four, thirty, thirty-six months after date, respectively, are paid promptly at maturity, all subject to terms and conditions in deed of trust securing this note."

"This note is renewed to come due June 14, 1932, provided 6 new interest notes each for $67.50 dated June 14, 1929, signed by Mary Plenge due in 6, 12, 18, 24, 30, 36 months are paid at maturity, all subject to covenants in deed of trust securing this note."

There was accompanying the note an allonge which contained the following endorsements:

"June 14, 1932. Renewed for three years to June 14, 1935; 6 interest notes executed for $67.50 each."

"June 14, 1935. $450.00 paid on account Bal.-$1800-renewed to April 14, 1936."

"April 14, 1936 renewed for 3 years and 6 renewal interest notes executed for $54.00 each, on same conditions as described in deed of trust."

In the meantime Mrs. Edgar Carson had inquired of Mr. Dowling for a good investment and he informed her of the note held by Mr. Hart and asked her to go and look at the property, which she did. Dowling bought the note for its full face value, and on July 15, 1937, sold it to Mrs. Carson for its full face value, $1,827.

The facts as developed are that one Fred Slobright, a single man, held title to the property on June 14, 1923; that said Slobright conveyed the property to Hazel B. Wright on August 11, 1923, by warranty deed, which deed specified that it was subject to the deed of trust of record; that on September 2, 1923, Hazel B. Wright, a widow, conveyed the property to August Plenge and Mary Plenge, husband and wife, by warranty deed, the deed specifying that it was subject to a first deed of trust for $4,250, dated June 14, 1923, and recorded in Book 3931, at page 126 in the office of the Recorder of Deeds, and which deed also specified that August Plenge and Mary Plenge were assuming and agreeing to pay said deed of trust. The entire transaction was handled for the Plenges by Frank L. Dittmeier. The deed of trust designated Edward K. Love as trustee, but on or about June 1, 1936, the defendant George S. Roudebush was regularly appointed as successor trustee to Edward K. Love, which fact was noted on the deed of trust.

On April 21, 1936, Mary Plenge conveyed the property to Harry Green "subject to any and all encumbrances of record."

On April 30, 1930, Mary Plenge, a widow and owner of the property, her husband having died in November, 1928, executed a note for $3,000, payable three years after date, to the order of Hazel Byington, and gave a deed of trust on the property to secure the same, in which deed of trust Frank L. Dittmeier was designated as trustee. Afterwards Alvin Wolff was appointed successor trustee to the said Frank L. Dittmeier, and the said Wolff, on the 16th day of September, 1936, after advertisement and notice sold the property at public sale to the plaintiff Minnie Diecke, who was then the holder of the note, for the sum of $2,500 and executed and delivered to her a trustee's deed therefor.

Plaintiff's contention is that the object of Mrs. Plenge in giving the $3,000 note was that the proceeds be used to pay the balance of the Slobright note, any remainder to be paid to her, but nevertheless she left the conduct of the whole transaction to her agent Dittmeier.

The Slobright note had a more varied course in its ownership. When the note was reduced to $2,250 on June 17, 1926, it was purchased by Nellie Crowley through the Edward K. Love Realty Company, and she testifies that she agreed to an extension of the due date for two three-year periods and thereafter for a six-month period, and finally on April 19, 1933, it was taken up by Dittmeier. Dittmeier then sold it to Bessie Brody who held it for three years, when, on April 23, 1936, Dittmeier paid to her the balance due on the note and took possession of it, the balance due at that time according to credits represented by Dittmeier to be due thereon being $1,375. Thereafter Dittmeier sold the note to Hilda Lorenz it being represented as being a note for a balance of $1,750, and the title to the property at that time being in Harry Green. By way of explanation, the reason alleged for the difference in the amount of balance due is the claim that while in Dittmeier's hands the credits were altered and changed.

Thereafter, on June 9, 1936, Dittmeier paid Hilda Lorenz the amount due her, $1,788.18 and again became possessed of the note and accompanying papers. And, on July 15, 1937, the note and accompanying papers then being held by Mr. Luke Hart were purchased by defendant Mrs. Edgar Carson as aforesaid.

While the statement of facts is necessarily complicated by reason of the many transactions in connection with the $3,000 note, by reason of which plaintiff claims title to the property, and the $4,250 note, by reason of which defendant Mrs. Edgar Carson claims a lien on the property, yet, the actual issues are not so burdened with complications, at least as to their number.

The questions at issue as tendered by the pleadings and the evidence are these: (a) A plea that the Slobright note is barred by the statutes of limitation, Sections 861 and 865, R.S.1929, Mo.St.Ann. §§ 861, 865, pp. 1139, 1153, (b), that the Slobright note was paid from the proceeds of the $3,000 note, (c) if not, then the note has been materially altered by reason of a credit for $500 being changed to a credit for $450, and in connection with that question, that no payment of either $500 or $450 was ever made on the note, and (d) that the note has been materially altered by reason of the three endorsements shown on the so-called allonge. Taking these questions in order:

(a) There is no evidence even casting a suspicion on the endorsements which are on the back of the note proper, and they extend the maturity of the note to June 14, 1932, which is well within the ten years provided by the above statutes of limitation.

(b) From the time that August Plenge and Mary Plenge, husband and wife, acquired title to the Wabada Avenue property to-wit, September 2, 1923, to the date of foreclosure of the $3,000 note and deed of trust, September 16, 1936, when Minnie Deicke acquired title, the Plenges were represented in all transactions effecting the title to the property and the notes secured by deeds of trust thereon by Frank L. Dittmeier. The plaintiff having alleged payment of the Slobright note from the proceeds of the $3,000 note executed April 30, 1930, the burden was on her to produce evidence to that effect. We are unable to find any evidence whatever in the record that Mrs. Plenge borrowed the $3,000 for the purpose of taking up the Slobright note. Plaintiff endeavors to draw such inference from a letter signed by Dittmeier Real Estate Company by Frank L. Dittmeier, president, on June 2, 1930, with which was enclosed a statement accounting for the proceeds of the $3,000 note, one item of which was "to amount due Edw. K. Love on loan principal $2,250.00," and which was excluded by the trial court, and properly so. There was nothing to connect it with the Slobright note, except the amount named, $2,250, and the Slobright note was at that time held by Nellie Crowley, to whom the Plenges through their agent Dittmeier had been making interest payments for several...