Siemers v. Schrader

• Decision Date: 20 November 1883
• Parties: PETER SIEMERS ET AL., Appellants, v. GUSTAV SCHRADER ET AL., Respondents.
• Court: Missouri Court of Appeals

14 Mo.App. 346

PETER SIEMERS ET AL., Appellants,

v.GUSTAV SCHRADER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1883.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

THOS. A. RUSSELL, for the appellants.

PATTISON & CRANE, for the respondents.

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

This was ejectment against Schrader, who was tenant of Chambers. Chambers, of his own motion, was made codefendant. He admitted possession; but denied all other allegations of the petition; and, as an affirmative defence, he set up purchase at a tax sale in October, 1872, and a tax deed to him in pursuance of the sale, filed for record on February 26, 1876; and pleaded the special three year limitation of the revenue law of 1872, in bar. He also pleaded adverse possession for ten years before this suit.

The cause was tried by the court, a jury being waived. The finding and judgment were for defendant.

The premises in question are lots 9 and 10 in block 2 of Blow and LeBeaume's addition, being block 743 of St. Louis.

It was stipulated that Virginia Brault was in possession, claiming to own the premises, on December 1, 1868, and remained in possession till March 28, 1876, at which date said Brault, with Harrison K. Bunch and Nancy Bowner, executed and delivered to defendant Chambers a quit-claim deed for the premises, and gave him possession. This suit was begun on May 20, 1882.

Plaintiff offered in evidence a deed of trust executed by Virginia Brault and H. K. Bunch to Butler, as trustee of John Barr, dated December 15, 1868, to secure a note of Brault and Bunch of same date, at six months, to order of Barr, for $300. The deed purports to convey the lots in question and also a 9 98/100 acre lot, being lot 22 of Graham's subdivision of the Sulphur Spring tract in Central Township. The deed is in the usual form, and provides for sale on default, on twenty days' notice in a St. Louis newspaper. The note was also offered. Across the face of it was written or stamped, “Paid. John R. Sayers, Teller.” Plaintiff also offered the trustee's deed, dated June 2, 1870, to plaintiff Siemers, which purports to convey to him all the property described in the deed of trust, for $1,355, bid by Siemers at a foreclosure sale on June 2, 1870. This deed recites, that the note remained due and unpaid at and after the time specified in said note and deed of trust for its payment. The affidavit of the printer attached, shows an advertisement in the St. Louis Times for seventeen times. The first publication was on May 14th, and the last on the 2d of June. There was no publication on the 16th of June, 23d, and 30th of June. Defendant objected to the deed of the trustee, on the ground that it showed insufficient notice. The deed was excluded.

Plaintiff then offered in evidence a writing without date, signed by plaintiff Siemers, witnessed by Aug. Gehner and H. K. Bunch; proved by the witness as executed in June, 1870, in default of acknowledgment, and recorded on March 18, 1871. This instrument sets out with a preamble, reciting that a note made by H. K. Bunch to order of Margaret Holmes, dated August 22, 1864, at two years, was secured by deed of trust executed by said Bunch upon five acres of the lot 22 of the Sulphur Spring tract mentioned above; that this note was sold by Holmes to Siemers on April 15, 1870, for $400, who owns and holds the same, and the deed of trust securing it. That said Bunch, on June 29, 1864, executed a deed of trust upon one acre of the same lot in the Sulphur Spring tract, to secure his note of same date at twelve months for $407, to order of Leonora Sackett; that Virginia Brault and Bunch executed the note and deed of trust above described as having been offered in evidence in this case; that Siemers, on April 30, 1870, paid $55 for an examination of the title of this property, and at same date paid to one Allen, who claimed to hold and own it, the amount of said $300 note, and thereby became owner of that note and the deed of trust given to secure it; that Siemers, in January, 1870, at the request of Virginia Brault, paid $221 in satisfaction of a judgment against her, whereby Brault became indebted to Siemers in that amount; that Siemers, in May, 1870, paid $700, the back taxes assessed against “said property,” whereby Brault became indebted to him in that sum. The instrument then proceeds: “Now, therefore, in order to secure the said Siemers for the whole amount of money due him by the said Brault and Bunch, he the said Siemers agrees to sell, without unnecessary delay, the property described under the deed of trust herein mentioned, and at the said trustee's sale, bid in all of said property, and have a deed of the same made to him; but he, the said Siemers, also agrees, on the payment to him by the said Brault, or any one in her behalf, of the various sums of money herein named as having been paid by him, said Siemers, for said Brault and Bunch for said notes, with ten per cent interest on the whole amount, the costs and expenses of said trustee's sale, convey by proper deed the whole of said property to said Virginia Brault or other person by her named; the intent and meaning of this agreement being, that if said Brault shall pay to said Siemers the money to which he is lawfully entitled on account of the transactions herein named, he, the said Siemers, then shall convey said property to said Brault unincumbered by said Siemers, being further understood and agreed between the parties that the said Siemers will not convey or otherwise dispose of the property herein described for the period of two years from this date, and that he, said Siemers, at or any time within the period of two years, upon the payment of principal and interest due him, convey the within property to Virginia Brault or whomsoever she directs; and the said Virginia Brault shall be entitled to sell the above described property and also to receive the rents and profits arising from said property.” The part in quotation marks is accurately transcribed. Some words necessary to the sense are omitted in the original. Over the words “above described,” last written above, is written, “and during that time;” but there is no caret mark to show where these words are to be inserted. This instrument is signed by Siemers alone. It is not sealed. On the back...