LeWis v. Schwenn

• Decision Date: 01 April 1884
• Citation: 15 Mo.App. 342
• Parties: M. D. LEWIS, PUBLIC ADMINISTRATOR, Appellant, v. CONRAD SCHWENN ET AL., Respondents.
• Court: Missouri Court of Appeals

15 Mo.App. 342

M. D. LEWIS, PUBLIC ADMINISTRATOR, Appellant,

v.CONRAD SCHWENN ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Apr. 1, 1884.

APPEAL from the St. Louis Circuit Court.

Affirmed.

E. P. JOHNSON, for the appellant: In computing the time within which a motion for new trial must be filed “Sunday or any other day, on which the court doth not sit, is not reckoned one of the four days.”--Tidd's Practice (4th Am. ed.), side p. 903, and cases there cited; National Bank of the Metropolis v. Williams, 46 Mo. 17, approved in Patchin v. Bonsack, 52 Mo. 433; Clerks' Savings Bank v. Thomas, 2 Mo. App. 367. The deed of trust was insufficient in itself to show authority in the trustee to sell, even if not objected to, as there was no provision in it making any recital by the trustee, evidence of the fact so recited.-- Bartlett v. O'Donoghue, 72 Mo. 563. And in the absence of such provisions in the deed of trust, such facts must be proved to authorize the trustee to sell, and there was no attempt to introduce such evidence, in this case.-- Vail v. Jacobs, 62 Mo. 130. After ten years it will be presumed that the secured note has been paid.-- Cape Girardeau v. Harbison, 58 Mo. 90; Chouteau v. Burlando, 20 Mo. 482. The possession of Engler under his deed, and that of his tenant or vendee, was notice to every one of his claim ( Black v. Long, 60 Mo. 181; Roberts v. Moseley, 64 Mo. 507), in addition to the recital in the deed of trust being notice to all claiming under it, that the note was presumed to have been paid, recitals in a deed, or even in the acknowledgment being notice to all claiming title under it.-- Major v. Buckley, 51 Mo. 227; Muldrow v. Robinson, 58 Mo. 331.

AUG. REBENACK, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This was ejectment for a tract of land in St. Louis county. The answer was a general denial. There was a trial by the court, a jury being waived, and the finding and judgment were for defendant.

It was stipulated that, on the 25th of January, 1862, J. Richard Barrett had good title to the property. Defendants admitted possession at the date of the suit: It appeared that plaintiff, as public administrator of the city of St. Louis, had charge of the estate of August Engler, deceased.

Plaintiff introduced a deed of J. Richard Barrett by the sheriff to August Engler, dated the 21st of March, 1867, recorded the 10th of June, 1867, conveying the premises in question, and also evidence tending to prove that, in the early summer of 1867, Engler took possession claiming to own the premises and retained possession until 1876, when he rented to Jacob Schwenn, the father of defendants, and Schwenn remained in possession as tenant of Engler until July, 1879, when he gave up possession to defendants. Engler died in St. Louis in 1880.

Defendants offered in evidence a deed for the premises n question from J. R. Barrett to G. O. Kalb, trustee of James C. Sutton, dated the 25th of February, 1862, recorded the same day, to secure a note made by Barrett. The deed recites that Barrett is “justly indebted to Sutton in the sum of nineteen hundred and odd dollars, for which he executed his note to said party of the second part several years ago, which note bears interest from date, and is past due, but the said party of the third part has given an extension of time on the same until the 1st of June, 1863.” The deed contains the usual provisions in deeds of trust to secure the payment of money. Defendants offered a deed of Kalb as trustee of Barrett to B. N. Sternberg, dated August 7, 1878, and recorded December 18, 1878, for the premises in question. This deed refers to the deed before recited, and is in the usual form of deeds of foreclosure. It was offered, together with the proof of publication. All of this testimony was admitted against the objection of plaintiff, that the deed of trust must be presumed in law to be satisfied at the date of the sale under it. Defendants also introduced a deed for the same premises from B. N. Sternberg and wife to them dated the 6th of July, 1879, and duly recorded.

Defendants also offered evidence tending to show that, in 1876, Jacob Schwenn took possession of the premises under a verbal agreement with Engler to purchase the premises of him for $600; but that he paid no part of the purchase-money, and delivered possession of the premises to defendants in July, 1879, when they purchased of Sternberg.

Plaintiff then asked instructions, which were all refused, to the effect: 1st. That the deed of...