Dugge v. Stumpe

• Decision Date: 30 April 1881
• Citation: 73 Mo. 513
• Parties: DUGGE v. STUMPE et al., Defendants, and LEONHARD, Plaintiff in Error.
• Court: Missouri Supreme Court

73 Mo. 513

DUGGE

v.STUMPE et al., Defendants, and LEONHARD, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1881.

Error to Franklin Circuit Court.--HON. A. J. SEAY, Judge.

REVERS

Jno. R. Martin for plaintiff in error.

J. C. Kiskaddon for defendants in error.

HOUGH, J.

It appears from the record that Edward Arcularius and Rudolph Johns, Jr., both minors, were tenants in common of an undivided two-thirds interest in certain real estate in Washington, Franklin county, and that C. F. E. Arcularius was the owner of the remaining third thereof. On the 30th day of June, 1868, Edward Arcularius and Rudolph Johns, Jr., by their guardians, sold their undivided two-thirds to the defendants, Kirchmann and Godt. On the same day, C. F. E. Arcularius sold his undivided third to Kirchmann and Godt for $1,950, and executed a deed therefor which contained an acknowledgment of the receipt of the purchase money, and was filed for record July 8th, 1868. On the 30th day of June, 1868, Kirchmann and Godt executed to August Fischer, trustee, a trust deed of the undivided third conveyed by C. F. E. Arcularius, to secure three notes representing the unpaid purchase money, which deed was filed for record December 7th, 1868. On July 2nd, 1868, Kirchmann borrowed from the defendant, Emilie Leonhard $1,000, payable in two years, and to secure the same, executed a deed of trust on his undivided one-half of the entire property purchased by himself and Godt. This deed was filed for record July 8th, 1868. In March, 1871, Mary E. Stumpe became the owner of the notes secured by the deed of trust to Fischer. On May 17th, 1872, August Fischer and C. F. E. Arcularius executed and delivered to Arnold Godt a deed releasing his interest in the property sold by him to Kirchmann and Godt, from the trust deed executed by them to Fischer, as trustee, to secure the unpaid purchase money. On the 2nd day of December, 1872, judgment of foreclosure of the trust deed executed by Kirchmann to Emilie Leonhard was rendered in the circuit court of Franklin county; and on the 19th day of February, 1873, the property mortgaged was sold by the sheriff to Mrs. Leonhard, and a deed was duly executed and acknowledged for the same by the sheriff on the 18th day of December, 1873. On June 3rd, 1873, in an ex parte proceeding, instituted by Mary E. Stumpe, Arnold Godt, C. F. E. Arcularius and August Fischer, in the Franklin circuit court, a decree was rendered canceling the release executed by Arcularius and Fischer, on the ground of mistake.

In April, 1874, this suit was commenced by the guardians of Edward Arcularius and Rudolph Johns, Jr.,...