"The petition of the plaintiff, Wonderly, alleged that defendant, Giessler, by his promissory note, marked Exhibit A, dated November 20, 1893, promised to pay June 6, 1896, to the order of W. J. Baird, $1,800, at the Mullanphy Savings Bank, for value received with interest from maturity at 8 per cent. per annum; that afterwards and before the maturity of this note Baird indorsed and delivered it to L. S. Holden, to whom he made it payable; that Holden and one Frank J. Hunleith then indorsed it, and that thereafter and before its maturity said note was by the then owner and holder of it for value sold and delivered to plaintiff, who has ever since been and still is the owner of it; that at its maturity plaintiff caused said note to be duly presented for payment at said Mullanphy Savings Bank, and, payment being refused, the note was duly protested for nonpayment, and notice of its dishonor duly given the indorsers of it; that said note with other notes was secured by a deed of trust on certain real estate in St. Charles county, Mo., and, said notes not having been paid, the trustee in said deed, at the request of the holder of said notes, sold said real estate in accordance with said deed of trust, and that thereby $646.66 was realized, which was properly applicable as a payment on said note May 6, 1898, and was so applied thereon, but that the balance of said note, principal, interest and damages for protest remains due and unpaid, amounting to two thousand and twenty-five dollars and forty cents, for which and interest and costs plaintiff prayed judgment.
"To this petition defendant Giessler filed an amended answer and cross-bill by which he admitted the execution of the note described in and filed with said petition as Exhibit A, and also admitted that W. J. Baird, L. S. Holden and Frank J. Hunleith indorsed this note, but he denied that said note was ever sold by the owner thereof to the plaintiff and also denied generally all the other allegations in said petition contained. By way of further answer and cross-bill defendant's amended answer then alleged that defendant, on November 20, 1893, was the owner of the E. ½ of S. E. ¼ of section 16, township 48 N. of Range 5, comprising eighty-two acres of land in St. Charles county, Mo., and that on said day defendant executed to one F. Schwartz, of the city of St. Louis, as party of the second part, the deed of trust of defendant conveying said land to Schwartz as trustee to secure to W. J. Baird the payment of two principal notes made by defendant and bearing even date with said deed, November 20, 1893, one for one thousand dollars, due June 6, 1894, and the other one for eighteen hundred dollars, due June 6, 1896, and a series of half yearly interest notes, the last one of which also matured June 6, 1896; that contemporaneously with the execution of this deed of trust, defendant also executed these notes and delivered the same to said Baird, and that said deed of trust was thereupon recorded in said St. Charles county in book 57, at page 543; that thereafter on November 24, 1894, defendant sold the land described in said deed of trust to one Adolph Kammerer of the city of St. Louis for eight thousand dollars purchase money, all of which said Kammerer satisfied and discharged except twenty-eight hundred dollars, which he retained to pay the two notes of defendant aggregating that sum, and the interest notes not yet matured, secured by said deed of trust, and that defendant and Mathilda, his wife, by their deed of date November 24, 1894, conveyed said land to Kammerer in fee simple subject to the deed of trust aforesaid and the taxes for 1894 and thereafter, and that in and by said conveyance said Kammerer expressly covenanted and agreed to pay off and discharge said notes and deed of trust at their maturity respectively; that for further assurance this defendant and wife, on March 12, 1895, executed and delivered to said Kammerer another deed, being one of quitclaim, conveying said land subject to said deed of trust, and that in and by said second deed said Kammerer again covenanted and agreed to pay off and discharge said notes and deed of trust at their maturity respectively, said two deeds so made by defendant and wife to said Kammerer having been thereafter recorded respectively in
book 63, at page 430, and book 66, at page 107, in St. Charles county, Mo. The answer and cross-bill next alleged that said Adolph Kammerer in turn sold this land to plaintiff, Charles P. Wonderly, for the stated consideration of eight thousand dollars, of which consideration Wonderly also retained and withheld twenty-eight hundred dollars; that by this contract of sale the plaintiff Wonderly also assumed the payment of said notes and deed of trust aggregating twenty-eight hundred dollars and interest, and that said Kammerer and wife, on March 14, 1895, by their deed of warranty of that date, conveyed said land to plaintiff herein, Charles P. Wonderly, expressly, subject to the deed of trust securing said two principal notes of one thousand dollars and eighteen hundred dollars respectively, and subject also to the interest notes not yet matured, also secured by said deed of trust, and that this deed of plaintiff was also duly recorded in St. Charles county in book 63, at page 444; that after said March 14, 1895, both said notes for one thousand dollars and eighteen hundred dollars respectively were taken up and satisfied by plaintiff Wonderly in accordance with the agreement made with defendant by the plaintiff's grantor, Kammerer, and in compliance with plaintiff's obligation to his said grantor when plaintiff obtained the title to said land by the deed of Kammerer and wife for the stated consideration of eight thousand dollars, of which plaintiff withheld the twenty-eight hundred dollars previously alleged; that when the plaintiff so took up said two principal notes he also acquired the deed of trust by which said notes were secured, that he was then the owner in fee simple of the real estate conveyed by this deed of trust, and that the title created by said deed of trust became and was merged with the legal fee-simple title to said realty then held and owned by plaintiff and said notes described in said deed of trust were thereby discharged; that notwithstanding that all the interest notes as well as said two principal notes secured by said deed of trust had been fully paid and discharged as aforesaid, the plaintiff, pretending to be the holder and owner of said two principal notes, did in April, 1898, induce one John F. Schneider, then acting sheriff of said St. Charles county, to advertise a sale of said land under said deed of trust, and that said Schneider on May 6, 1898, did go through the form of making a sale under said deed, at which sale plaintiff Wonderly became the purchaser and received from said Schneider a deed for said land; that said sale was a nullity because all the notes secured by said deed of trust had theretofore been fully discharged and the title conveyed by said deed of trust had become merged with plaintiff's fee-simple title to all said land; that at said pretended trustee's sale plaintiff bid two thousand dollars for the property, and, pretending to be the holder of the two notes for one thousand dollars and eighteen hundred dollars respectively, he receipted to said sheriff for the pretended proceeds of said sale; and that said sheriff at the instance of plaintiff credited upon the back of the note here sued on May 6, 1898, $646.66, as being part of the net proceeds of this sale. This amended answer of defendant, concluded with a prayer for a decree against plaintiff, canceling the note here sued upon and for the delivery thereof to defendant and for judgment against plaintiff for costs."
