Newell v. La Font

• Decision Date: 08 May 1923
• Docket Number: No. 17784.,17784.
• Citation: 251 S.W. 472
• Parties: NEWELL v. LA FONT et at.
• Court: Missouri Court of Appeals

251 S.W. 472

NEWELL v. LA FONT et at.

No. 17784.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by James P. Newell, Public Administrator of the City of St. Louis, in charge of the estate of Henry Reinelt, against Eugene La Font and others. From the judgment, the defendants appeal. Affirmed.

Joseph Dickson, Jr., of St. Louis, for appellants.

Oliver De Werthern, of St. Louis, for respondent.

BRUERE, C.

This is a proceeding in equity, brought by plaintiff, as administrator of the estate of Henry Reinelt, deceased, against the defendants, to establish the ownership of plaintiff in certain lost notes executed by William A. La Font and Minnie La Font, his wife, and to have the deed of trust securing the notes foreclosed in the event that the makers of said notes refused to pay the sum due thereon. In the trial below there was a decree in favor of the plaintiff as prayed for, and defendants have appealed.

There is no dispute as to the facts in the case. The defendants answered, admitting that William A. La Font and Minnie La Font executed a principal note in the sum of $3,300, dated August 1, 1914, payable three years after date, together with six interest notes each in the sum of $99, bearing even date therewith, and due in 6, 12, 18, 24, 30, and 36 months after said date all payable to the order of Carrie Wanstrath, and that all of said notes were secured by a deed of trust executed by said William A. La Font and Minnie La Font on August 1, 1914, conveying to George J. Wanstrath, as trustee, the property described in the petition.

In their answer the defendants further admitted that on the 12th day of December, 1916, defendants W. A. La Font and Minnie La Font conveyed the premises, described in the deed of trust, by quitclaim deed to defendant Eugene La Font and that Eugene La Font was the record owner of said premises.

Defendants denied that said notes and deed of trust were lost or misplaced by said Henry Reinelt before his death, and denied that at the time of his death on, to wit, the 22d day of" March, 1915, the said Henry Reinelt was the owner and rightfully entitled to the possession of said notes and deed of trust.

Defendants in their answer alleged that William A. La Font and Minnie La Font had paid one interest note in the sum of $99 at its maturity on the 1st day of February, 1915, and that as the several interest notes and the principal note subsequently became due they made tender of the amount thereof to the said George J. Wanstrath, the trustee named in the deed of trust, at his office in the city of St. Louis, but that said George J. Wanstrath refused to accept the tender because the notes were not in his possession; that defendants William A. La Font and Minnie La Font were ready and willing to pay the amount due upon the" remaining notes upon the surrender and delivery of them, but not otherwise.

The sole question presented in this case is whether there was sufficient evidence to support the decree entered herein.

In addition to the admissions in the answer, it appeared from the evidence that the defendants W. A. La Font and Minnie La Font on August 1, 1914, obtained a loan of $3,300 from the defendant George J. Wanstrath. This loan was evidenced by the notes in question, and was secured by a deed of trust on the home of said defendants. All of said notes were payable to Carrie Wanstrath (the daughter of George J. Wanstrath) or order at the office of George J. Wanstrath Real Estate Company, St. Louis, Mo. On August 11, 1914, Henry Reinelt, the deceased, purchased said notes through George J. Wanstrath for $3,300 and the same were delivered to him on said day. Eugene La Font paid the interest note due February 1, 1915, to George J. Wanstrath, at its maturity; and on February 3, 1915, the money so paid was turned over by George J. Wanstrath to Henry Reinelt.

Henry Reinelt was a bachelor and lived alone in the city of St. Louis, Mo., where he died March 22, 1915. After his death a bona fide and diligent search by the plaintiff was unsuccessfully made for the notes and deed of trust at his home, where the deceased kept his effects, and other places where the plaintiff thought they might be found.

It further was shown at the trial, which was had on November 17, 1920, that, after February 3, 1915, no one presented any of said notes for payment at the office of George J. Wanstrath Real Estate Company, in St. Louis, Mo., and no information came to said Real Estate Company, or to the defendants, that the deceased was not the owner and holder of said notes at the time of his death.

In support of the contention that the evidence is insufficient to support the decree, it is urged that the loss of the notes in question was not proved, in that there was no evidence adduced to prove that at the time of Reinelt's death he (Reinelt) was the owner of the notes.

While it is necessary that the party seeking to recover upon a lost note must prove the loss of the paper; direct and positive evidence of the fact is not required. In the nature of things, an actual destruction of the instrument can seldom be shown and its loss, as well as other matter of fact, may be proved by presumptive evidence.

Where a party is proved to be the owner of the instrument at a given time, the presumption of law is that he so continues to be such owner until the contrary is shown by countervailing proof, or by some stronger countervailing presumption of law. Proof that a bona fide and diligent search has been unsuccessfully made for the instrument in the place where, if existing, it would be most likely to be found, and by the person in whose hands the law presumes it to be, is sufficient to raise the presumption of loss. Crader v. Primm, 47...