Gempp v. Teiber

• Decision Date: 06 July 1943
• Docket Number: No. 26391.,26391.
• Parties: GEMPP v. TEIBER.
• Court: Missouri Court of Appeals

173 S.W.2d 651

GEMPP v. TEIBER.

No. 26391.

St. Louis Court of Appeals. Missouri.

July 6, 1943.

Rehearing Denied September 10, 1943.

Appeal from City of St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by Ida L. Gempp against Fred W. Teiber for the balance due on a promissory note after being credited with the net returns from a sale under a deed of trust securing the note. From a judgment on the pleadings for plaintiff, defendant appeals.

Affirmed.

Paul H. Koenig and Walter W. Schiek, both of St. Louis, for appellant.

Frank Landwehr, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a suit at law for the balance due on a promissory note after being credited with the net returns from a sale under a deed of trust securing the note.

The material allegations of the pleadings and the action of the trial court thereon are stated by appellant to be as follows:

"The petition of respondent alleged the execution by Fred W. Teiber and Euphemia Teiber of a note to one E. F. Sauerwein, due five years after date from the 27 of November, 1937, in the sum of $24,000.00, with interest thereon from maturity at the rate of 8%, payable at the office of H. H. Laumeier, conditioned upon the performance by the defendants of the terms of the deed of trust securing payment of the said note and that on the same day E. F. Sauerwein endorsed and delivered the note to the plaintiff, respondent herein, and that the plaintiff has since been the holder of the said note. Petition states that the defendant had paid certain interest on the said note; that default had occurred by reason of the failure of the makers of the note to pay the principal of the same and that thereafter on the 26th day of December, 1939, the real estate securing the payment of the note was sold by H. H. Laumeier, Trustee, as provided by the said deed of trust, and that after having given due credit to the defendants, appellants herein, in the sum of $20,393.32 and applied the same as a credit on the note, there remained a balance of $3,606.68, for which sum together with interest at the rate of 8% from December 26, 1939, plaintiff prayed judgment.

"Defendant Teiber in due course filed his answer, in which answer he admitted the execution of the note on the date alleged in the petition and in the amount set forth in the petition. Also admitted that the said note was secured by a deed of trust on property in the City of St. Louis, known and numbered as 5561 Waterman Avenue. Defendant admitted that H. H. Laumeier was the trustee in the said deed and that the said trustee did conduct a sale of the property at the time specified in the petition. Defendant further alleged in his answer that it was agreed by and between the trustee and one George C. Naumann that the deed from the trustee would be issued to him, Naumann, and that Naumann was the straw man for Laumeier, the trustee, and that Naumann at no time purchased the property nor paid anything for the same at the sale or at any other time and that the said understanding between Naumann and Laumeier was without the knowledge or consent of the defendant.

"Defendant further alleges in his answer that the property at the time of the sale was of the reasonable value of $28,000.00, the sum being largely in excess of the amount owing by the defendant on the note. Defendant further in his answer stated that the trustee's deed executed by H. H. Laumeier to George C. Naumann, was merely a transfer of property by the trustee to himself and that Naumann at no time had any interest in the transaction. He also in his answer alleged that Ida L. Gempp, the plaintiff, respondent herein, at no time had any right, title or interest in the said note and knew nothing of the note, and that she was merely a straw party of H. H. Laumeier, the only real party in interest.

"Defendant, appellant herein, alleges in his answer that by reason of all the foregoing, the note has been paid in full by reason of the fact that the trustee has conveyed the property to himself and that at all times the trustee was the real party in interest, by reason of which there is nothing owing to the plaintiff.

"Thereafter plaintiff filed her motion for judgment on the pleadings which was sustained and a judgment rendered accordingly against the defendant in the sum aggregating $4,186.15."

There is no question but that a motion for judgment on the pleadings, like a demurrer to a pleading, admits for the purpose of the motion, all facts well pleaded, as appel...