Klaiber v. Jorcke

• Citation: 239 S.W. 880
• Decision Date: 04 April 1922
• Docket Number: No. 16639.,16639.
• Parties: KLAIBER et al. v. JORCKE et al.
• Court: Court of Appeal of Missouri (US)

239 S.W. 880

KLAIBER et al. v. JORCKE et al.

No. 16639.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Rehearing Denied April 20, 1922.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Wilhelmine Stifel against Elizabeth Jorcke and others. From a decree dismissing the petition, Emma C. Klaiber, executrix of plaintiff's estate, and another appeal. Affirmed.

S. O. Rogers, of St. Louis, for appellants.

Hugo Muench, of San Diego, Cal., and Walther, Muench & Hecker, of St. Louis, for respondents.

DAUES, J.

This action was originally instituted by Wilhelmine Stifel, who died after the trial and before the appeal was taken in the circuit court. The cause was revived in the name of Emma O. Klaiber, executrix, and Emma. W. S. O'Conner as sole legatee of Wilhelmine Stifel, deceased. The purpose of the suit, according to the petition, is to enjoin defendants from selling or otherwise disposing of certain notes and a deed of trust, and seeks to enjoin a foreclosure under same, and finally prays a cancellation of same.

Defendant Elizabeth Jorcke by separate answer admitted the ownership of the deed of trust and the notes in controversy, and by way of affirmative relief sought a decree directing a foreclosure and sale to satisfy the debt. The joint answer of the two other defendants, Hemmelmann-Spackler Real Estate Company and Joshua Risch, is in effect, a general denial.

The reply of plaintiff is verified, and specifically denies the execution of the deed of trust and notes in suit, and denies the uttering and renewal thereof, and pleads payment by mistake of a certain interest note, hereinafter referred to as "Exhibit K."

The evidence discloses that plaintiff owned certain real estate in the city of St. Louis, known as lot 11, block 4781; same fronts on Audubon avenue, and is improved with two flats. The building on the eastern half of the lot is numbered 4555, and the building on the western half 4557 Audubon avenue. Concededly, plaintiff purchased this property in October, 1909. At the time of the purchase of same by plaintiff, each parcel, that is, No. 4555, and No. 4557, was subject to separate deeds of trust for $3,000 and a second mortgage for $950, or a total on the whole property of $7,900. These loans were dated September 9, 1908, and ran for three years. The loans were made in behalf of Mrs. Stifel, the plaintiff, by one Frank B. Ruhr, who acted as her agent in these and other real estate matters until his death in November, 1916.

The deed of trust for 4557 was reduced to $2,000 on September 9, 1911, and renewed at that time for a period of three years, and six semiannual interest notes were admittedly executed by plaintiff. This carried the loan over to September 9, 1914, at which time it was again renewed for an additional three years, and six new semiannual interest notes were again executed. Companion to these notes and deeds of trust and renewal thereof on lot 4557 Audubon avenue, there appears a note for $2,000, dated September 9, 1911, for three years, payable likewise to Dorothy C. Engleman, a straw party then employed in Ruhr's real estate office, and signed by "Wilhelmine Stifel" as maker. This note bears extension indorsement to 1914, and again to 1917, with new semiannual interest notes in all things like the loan on 4557.

Plaintiff denies that she signed the deed of trust covering No. 4555, dated September 9, 1911, or the principal note of $2,000, or interest notes thereunder, or that she made the extension of life of the note as indicated by the indorsements thereon, or that she authorized Ruhr, or any one else, to do so for her. Defendants produced the documents and maintain that same are genuine and were properly executed and uttered by plaintiff. Thus we have the main controversy of the case. If the notes and deed of trust in controversy are held to be genuine same being due and unsatisfied, then plaintiff's petition was properly dismissed.

Proceeding further with the facts, the evidence shows that on September 9, 1914, defendant Elizabeth Jorcke purchased from defendant Risch the disputed deed of trust with the principal note for $2,000 and the interest notes. The signature to the deed and the notes corresponded, the stamps and seals were official, and all the papers with the usual muniments appeared to be regular. The interest notes fell due at six months' periods in the sum of $60; these were paid regularly, same being brought to Mrs. Jorcke by Risch, from whom she obtained the notes. The interest note due March 9, 1917, was paid to the defendant by the Hemmelmann-Spackler Real Estate Company, which was then making the collections for Mrs. Jorcke. This particular interest note was paid by plaintiff, Mrs. Stifel, herself, in person at the office of the Hemmelmann-Spackler Real Estate Company. When the principal note of $2,000 and the last interest note fell due (September 9, 1917), plaintiff defaulted in the payment, and informed defendant real estate company, when payment was demanded, to see her attorney about it. Plaintiff then brought this suit to enjoin a foreclosure under the deed of trust controversy.

As already stated, plaintiff transacted her real estate business through Frank B. Ruhr before his death in November, 1916, and this loan and certain other loans for plaintiff were made for her through Ruhr. Risch, it seems, worked in and out of Ruhr's real estate office; but there is no evidence showing that a partnership existed between them, nor were they agents for each other. There is evidence that Risch handled certain matters of real estate loans and insurance obtained through Ruhr. The defendant Jorcke did not know Ruhr.

The deed of trust and the notes in controversy purporting to cover the real estate known as 4555 Audubon avenue is recorded in Book 2458, p. 536, in the office of the recorder of deeds in the city of St. Louis, September 11, 1911. The principal note, as stated above, is for $2,000.

The chancellor made a general finding for defendants on plaintiff's cause of action and for defendant Jorcke on her counterclaim. Before drafting and entering the final decree, however, defendant Jorcke waived her right to recover upon her cross-bill or counterclaim, and thereupon the cross-bill was by the court dismissed without prejudice, and accordingly a decree was entered dismissing plaintiff's petition at the cost of plaintiff, from which plaintiff appealed.

When the case reached this court, counsel for appellants insisted that the title to real estate was directly involved and that jurisdiction to determine this appeal was therefore exclusively in the Supreme Court. It was contended that the petition not only sought to enjoin the defendants from transferring and disposing of the deed of trust and the notes, but also charged that the deed of trust and the notes were fraudulently executed and that same should be canceled, and thus it was said that the title to real estate was involved. Learned counsel for respondents, on the other hand, maintained that, since the trustee under the deed of trust (the holder of the legal title to the real estate) was not made a party to the action, no judgment or decree could have gone further than to enjoin foreclosure or the transfer of the notes and deed of trust, and could not in any event have ordered the deed of trust canceled and thus invest Mrs. Stifel with full title to the property, and that therefore the sole issue was one of injunctive relief.

This court transferred the cause to the Supreme Court, where like contentions were made by the parties on a motion of respondents to retransfer the cause to this court, and that court retransferred the case here, holding that the jurisdiction to determine this appeal was vested in this court. No opinion was filed. The question before us, then, is whether the court nisi properly heard and determined the cause on the issue thus remaining.

We address ourselves then to the determinative question in the case—that of the genuineness of the deed of trust, and whether there was an extension of same by the execution of renewal notes carrying the time...