Utz v. Dormann

• Decision Date: 30 June 1931
• Citation: 39 S.W.2d 1053,328 Mo. 258
• Parties: Nora Utz and Edna Niewig, Minors by their Guardian Ad Litem, Ben L. Emmons, Appellant, v. Alvena Dormann, Virgin Dormann, Anna Speth, Fred Speth, Arnold C. Hoefner, Fred Hoefner, Henry Hoefner, Benjamin Hoefner, Victor Hoefner, Edwin Hoefner, Anna Karrenbrock, Matilda Pierce, Laura Turner, Edna Hoefner, Irving Karrenbrock, Homer Karrenbrock, Herbert Karrenbrock, Webster Karrenbrock, Waldo Karrenbrock and Viola Karrenbrock, Respondents, and Evelyn Dalton and Judith Pundmann, Appellants
• Court: Missouri Supreme Court

39 S.W.2d 1053

328 Mo. 258

Nora Utz and Edna Niewig, Minors by their Guardian Ad Litem, Ben L. Emmons, Appellant, v. Alvena Dormann, Virgin Dormann, Anna Speth, Fred Speth, Arnold C. Hoefner, Fred Hoefner, Henry Hoefner, Benjamin Hoefner, Victor Hoefner, Edwin Hoefner, Anna Karrenbrock, Matilda Pierce, Laura Turner, Edna Hoefner, Irving Karrenbrock, Homer Karrenbrock, Herbert Karrenbrock, Webster Karrenbrock, Waldo Karrenbrock and Viola Karrenbrock, Respondents, and Evelyn Dalton and Judith Pundmann, Appellants

Supreme Court of Missouri

June 30, 1931

Appeal from St. Charles Circuit Court; Hon. Edgar B Woolfolk, Judge.

Reversed and remanded.

W. R Dalton, B. H. Dyer and Wm. Waye, Jr., for appellants.

(1) The Statute of Limitations against the $ 1960 note given by Bredenwischer to Hoefner, dated March 21, 1879, could be tolled by the maker making payments thereon, but payments made on said note by anyone except the maker would not toll the statute unless such payment were authorized by the maker. And in this case payments made on this note by the widow children and grandchild of the maker did not toll the statute. 37 C. J. 1159; Regan v. Williams, 185 Mo. 620; Frase v. Lee, 160 Mo.App. 607; Gallagher v. Whalen, 9 S.W. 390, 10 Ky. L. 458; Earls v. Earls, 182 S.W. 1018. (2) The sale of the land here involved to Henry Hoefner under the deed of trust given by Bredenwischer and wife to Hoefner to secure the payment of the note for $ 1960 dated March 21, 1879, was a nullity and conveyed no title, because the note was barred in 1890 and the deed of trust could not be foreclosed legally in 1923. Laws 1891, p. 184; Stockton v. Teasdale, 115 Mo.App. 245, 212 Mo. 611; Bumgardner v. Wealand, 197 Mo. 433; Hower v. Erwin, 221 Mo. 93. (3) Even if said note had not been barred by the Statute of Limitations, the sale under said deed of trust was a nullity, for the reason that, under the Act of 1921, no proceeding to foreclose can be had after the lapse of twenty years from the date at which said note matured, which was March 21, 1880, unless proceedings are begun within two years after the passage of the act. Said act became effective June 20, 1921, and the first notice of sale under the deed of trust was published June 22, 1923, more than two years after the act went into effect. Laws 1921, p. 202; Friel v. Alewell, 212 Mo.App. 211. (4) The $ 700 note dated May 16, 1895, made by Elise Bredenwischer and given to Fred Speth and secured by a deed of trust, matured May 16, 1896, and more than twenty years has elapsed since said date and no proceeding of any kind was started to foreclose said deed of trust and said deed of trust cannot now be foreclosed, and should have been held to be no longer a lien. Laws 1921, p. 202. (5) The note was barred by the Statute of Limitations and for that reason the holder thereof should be enjoined from attempting to foreclose the deed of trust and said deed of trust should be canceled. Said deed of trust could not be foreclosed. Hubbard v. Dahlke, 277 Mo. 516.

W. F. Bloebaum, Theodore C. Bruere and Allen, Moser & Marsalek for respondents.

(1) Interest payments made by Mrs. Bredenwischer, the widow, during her occupancy of the land, operate to revive and keep alive the lien of the mortgage for the statutory period of limitation from the date of the making thereof. 17 R. C. L. 934, sec. 297; Devens v. Van Valkenburg, 92 Mo.App. 215. (2) Since the defendant Evelyn Dalton filed no motion for a new trial, there is nothing before this court for review except the record as to the alleged interest of said defendant; and since the pleadings made an issue of the validity of the foreclosure proceeding, foreclosing the deed of trust of March 21, 1879, and the sale thereunder, and the record proper is free from error, the judgment must be affirmed as to this defendant. Said appellant's assignments of error are not reviewable. Primeau v. Primeau, 317 Mo. 828; Laumeier v. Sammelmann, 218 Mo.App. 468; Huhn v. Ruprecht, 2 S.W.2d 760; Henry v. Railroad, 3 S.W.2d 1004. (3) The $ 700 note and deed of trust of May 16, 1895, was obviously not barred by limitations. Since the evidence shows without dispute that Mrs. Bredenwischer, the maker of the note, paid the interest thereon to and including October, 1918, said note was never barred. Highland Inv. Co. v. Scales Co., 277 Mo. 365. (4) Neither was the right to foreclose the deed of trust of March 21, 1879, barred by the Act of 1921, for the reason that a "proceeding" was begun within two years after the date of the passage of that act, by petition of the cestui que trust to the circuit court for authority to appoint a new trustee. Laws 1921, p. 202; Friel v. Alewel, 318 Mo. 1. (5) A "proceeding" is any act necessary to be done in order to obtain a given end. The filing of an affidavit is a "proceeding;" so is the swearing to a petition. Green v. Board of Commissioners, 126 Okla. 300, 259 P. 635; Wimberly v. State, 90 Ark. 514; Johnson v. Jones, 2 Neb. 126; Ex Parte McGee, 33 Ore. 165.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

Plaintiffs' petition contains three counts. The first count is an action to ascertain and determine title to certain described real estate. The second is an action in ejectment. The third avers that a certain deed of trust on said land is null and void, and prays that said deed of trust be declared barred by the Statute of Limitation, that the sale of said property under said deed of trust be declared of no effect, and that said real estate be partitioned and sold. The trial court awarded judgment, determining that title was in respondents, and decreed that a deed from Alvena Dormann, Anna Speth and Fred Speth, her husband, to Evelyn Dalton, dated July 20, 1923, was void and of no effect, because said deed casts a cloud upon the title of the true owners; that said deed to Evelyn Dalton be canceled, and that title be vested in respondents. The court further found that the respondents, the heirs of the purchaser at the trustee's sale, were at all times in lawful possession of the real estate, and that neither appellants, Nora Utz, Edna Niewig and Judith Pundmann, nor defendants, Alvena Dormann, Virgil Dormann, Anna Speth, Anna Speth, administratrix of the estate of Fred Speth, deceased, nor appellant Evelyn Dalton, have any right to claim or possess said real estate. The court further found that neither appellants nor the defendants last mentioned have any right, title or interest in the real estate, or any right to partition. Plaintiffs Nora Utz and Edna Niewig and defendants Judith Pundmann and Evelyn Dalton appealed from the judgment entered.

The facts develop that in 1879 Frederick Bredenwischer owned 68.75 acres, and his wife, Elise Bredenwischer, owned 11.25 acres, which two tracts were contiguous and together comprised the west half of the southeast quarter of Section 22, Township 46 North, Range 1 East, in St. Charles County, a tract of eighty acres. On March 21, 1879, Frederick and Elise Bredenwischer executed a deed of trust on said eighty acres to one Leimbrock, trustee, to secure a promissory note of even date in the sum of $ 1960, payable to Henry Hoefner, which note was signed only by said Frederick. Said deed of trust was duly acknowledged and recorded. Frederick Bredenwischer died in 1885, and letters of administration were issued to Elise, his wife, on July 14, 1885, who inventoried the eighty-acre tract of land as belonging to him, together with $ 302.45 personalty.

Frederick left surviving him his widow and five daughters, to-wit, Alvena, who married one Dormann; Anna, who married Fred Speth; Judith, who married one Pundmann; Clara, who married one Niewig, and Lena, who died at the age of eight years, intestate, unmarried and without issue, leaving as her heirs at law her mother and four surviving sisters mentioned above. Clara Niewig died intestate later, leaving as her heirs at law her two children, Nora Utz and Edna Niewig, grandchildren of Frederick and Elise Bredenwischer, and plaintiffs herein. Elise Bredenwischer died intestate in 1922, leaving as her only heirs her daughters, Alvena Dormann, Anna Speth, Judith Pundmann, and plaintiffs. Elise, at the death of her husband, took a homestead and dower in his real estate. Subsequently she inherited an interest from her deceased daughter Lena. She continued to live on the farm until her death.

On April 30, 1923, Henry Hoefner, the cestui que trust in the deed of trust and the owner of the $ 1960 note secured by it, filed his petition, verified April 17, 1923, in the Circuit Court of St. Charles County for the appointment of a trustee in place of Leimbrock, trustee therein, deceased. On May 14, 1923, the circuit court appointed Arnold Hoefner as substitute trustee. The substituted trustee commenced publication of notice of sale under said deed of trust on June 22, 1923, and continued publishing said notice until the last publication on July 27, 1923. The trustee sold said real estate under said notice and deed of trust on July 28, 1923, to Henry Hoefner for $ 3,500. Henry Hoefner died on August 1, 1923, and the land descended to his heirs, the respondents herein.

On May 16, 1895, Elise Bredenwischer executed a deed of trust and note for $ 700, payable one year after date, in favor of Fred Speth, on the 11.25 acres, which land was also covered by the deed of trust in favor of Henry Hoefner and to which it was subject.

There was evidence introduced which respondents assert shows that payments on said notes for $ 1960 and $ 700, respectively were made that kept them alive and arrested the Statute of Limitation. Appellants contend that the evidence as to payments was insufficient for that purpose. Our views as to the applicability of Section 1320, infra, render it...