Summary
describing Missouri statute as "one of `repose,' meaning, in legal parlance, that it simply precludes the bringing of an action to enforce rights, it affects the remedy only and may not be employed in securing affirmative relief"
Summary of this case from Wenke ex rel. Laufenberg v. Gehl Co.Opinion
No. 41712.
July 10, 1950. Rehearing Denied September 11, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, RAYMOND E. LaDRIERE, J.
Michael J. Ebeling, St. Louis, for appellant.
Herbert W. Ziercher, Clayton, for respondents Fred Vauk and Anne T. Vauk, third-party defendants.
Robert C. Brinkman, St. Louis, for respondents Frank Gangol and Katherine Gangol, His Wife, defendants and third-party plaintiffs.
Louis Shifrin and Shifrin Shifrin, St. Louis, for respondents Eleanor Kaul, Angela D. Kaul, Clara Kren and Andrew J. Kren, her husband, third-party defendants.
This is a suit by the Carwood Realty Company to cancel a trustee's deed as void and to quiet the title to a lot in the City of St. Louis. The plaintiff and the defendants, Frank and Katherine Gangol, derive their respective titles from the same predecessor in title; the Carwood Realty Company through a foreclosure and conveyances, the last of which is a quitclaim deed executed February 2, 1931, and the Gangols through conveyances and the foreclosure of the questioned deed of trust on September 10, 1940. The trial court found for the defendants and the Carwood Realty Company urges upon this appeal that the judgment should be reversed — claiming that the foreclosure under which the Gangols claim title was void. In this situation title to real estate is involved in the action and jurisdiction of the appeal is appropriately in this court. Murphy v. Milby, 344 Mo. 1080, 130 S.W.2d 518; Cordia v. Matthes, Mo.App., 122 S.W.2d 32. Compare: Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428.
The case was submitted to the trial court upon an agreed statement of facts. Briefly the agreed facts are that on November 20, 1912 the property was owned by Development Corporation of St. Louis. On that date, November 20, 1912, the corporation executed a note in the sum of $500.00 payable three years after date, secured by a deed of trust on the property. As a part of the obligation the corporation issued six semi-annual interest notes of $15.00 each, payable six, twelve, eighteen, twenty-four, thirty and thirty-six months after date. The principal note was extended from time to time for periods of one to three years after 1915 until November 20, 1937, by stamped and written unsigned endorsements on the back of the note. Albert Wenzlick owned and controlled all the stock of the Carwood Realty Company and there were endorsements of payments on the principal of the note, $150.00 on January 15, 1934 and $50.00 on July 23, 1934, by Mr. Wenzlick. On October 15, 1913 Development Corporation of St. Louis conveyed the property to Meryl Realty and Investment Company. Mr. Wenzlick was an incorporator of that company and an officer and director of it. On October 1, 1928 that company executed a deed of trust on the property and in February 1929 conveyed it to Albert and Emma S. Wenzlick. The deed of trust executed by Meryl Realty and Investment Company was foreclosed in October 1930 and Medora Newsom, mother-in-law of Albert's son Ray, became the purchaser and on February 2, 1931 quitclaimed the property to the plaintiff, Carwood Realty Company. On August 2, 1934 Albert Wenzlick executed an affidavit, in compliance with Mo.R.S.A. § 1017, in which he described the note and deed of trust executed by Development Corporation of St. Louis and stated that the amount due on the note was $300.00 and that the note and deed of trust were valid and subsisting obligations. He also stated that in making the affidavit he was representing the then owner and holder of the note, Frank Kaul. The deed of trust was foreclosed on September 10, 1940 and Frank Kaul was the purchaser at the foreclosure sale. Kaul's children conveyed the property to Bertilla Caron and on February 18, 1943 Bertilla Caron conveyed the lot to Fred and Anna Vauk for the price of $1,000.00 and in April 1944 the Vauks sold the property to the Gangols for $1,500.00.
The Carwood Realty Company claims that the obligation secured by the 1912 deed of trust was barred by the statute of limitations, Mo.R.S.A. § 1017, and therefore the foreclosure in 1940 was void and should be set aside and title quieted in it under its quitclaim deed. Its position is summarized in this paragraph of its brief: "Briefly, the note due in three years, dated November 20, 1912, became outlawed on November 20, 1925 in accordance with and pursuant to Section 1013 R.S.Mo. 1939 Mo. R.S.A. (the ten year statute of limitations) (absent any statute tolling actions — which absence is hereinafter treated). That was almost fifteen years prior to the purported foreclosure in September 1940, and over five years before the plaintiff herein even acquired title to the property." Development Corporation forfeited its charter in 1914 and it is argued that all subsequent payments of principal were made by volunteers because all conveyances were "subject to existing encumbrances" and did not toll the running of the ten year statute, Section 1013. Utz v. Dormann, 328 Mo. 258, 39 S.W.2d 1053; Emery v. Holt County, 345 Mo. 223, 132 S.W.2d 970. That part of Section 1017 applicable here is as follows:
"No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statutes of limitation of this state; nor in any event after the lapse of twenty years from the date at which the last maturing obligation secured by the instrument sought to be foreclosed is due on the face of such instrument, * * * unless before the lapse of said twenty years the owner of the debt thereby secured or some person for him shall file an affidavit duly verified, or file an instrument in writing * * * showing the amount due and owing thereon."
The appellant's position is not tenable for two reasons. In the first place, the statute, Mo.R.S.A. § 1017, is one of "repose," meaning, in legal parlance, that it simply precludes the bringing of an action to enforce rights, it affects the remedy only and may not be employed in securing affirmative relief. Stock v. Schloman, 322 Mo. 1209, 1217, 18 S.W.2d 428, 432. In Milby v. Murphy, Mo.App., 121 S.W.2d 169, the plaintiff sought to have the lien of a deed of trust declared void as barred by Section 1017. The court said, 121 S.W.2d loc. cit. 171: "* * * when a statute of limitations affects only the remedy and not the right, or, in other words, when it is defensive only and serves merely to restrict the period within which the right might otherwise be asserted, it confers no substantive right upon the party entitled to plead it by way of defense, and cannot be made the basis of a plea for affirmative relief."
In the second place, the appellant's entire reliance is upon the first clause of the quoted statute and in complete disregard of the italicized portion, "unless before the lapse of twenty years the owner of the debt thereby secured or some person for him shall file an affidavit duly verified, * * * showing the amount due and owing thereon." On the face of the note, the principal sum was due three years after date, on November 20, 1915. There is no objection to the contents or form of the affidavit and it was agreed that it was properly executed and duly filed within twenty years of the date of the maturing obligation on August 2, 1934. Therefore, aside from any questions concerning extensions of the obligation, Coleman v. Trueblood, 351 Mo. 188, 172 S.W.2d 863, the statute was complied with and the foreclosure was not void. Murphy v. Milby, 344 Mo. 1080, 130 S.W.2d 518. In Ste. Genevieve County v. Heberlie, 351 Mo. 70, 171 S.W.2d 667, 668, the county school fund mortgage and bond were executed on April 7, 1919, due April 7, 1920. On April 5, 1940 the county filed an instrument describing the mortgage and stating the amount of principal and interest due. The court said: "Under the statute the county could and did extend the time for foreclosure by recording the written instrument above mentioned before the expiration of twenty years from the maturity of the obligation. The extension was recorded on April 5, 1940, two days before the expiration of the twenty year period." In the Utz and Holt County cases there was no attempt to comply with the proviso contained in the statute. Under the agreed statement of facts the trial court properly denied the plaintiff's claim to relief, Murphy v. Milby, supra; Ste. Genevieve County v. Heberlie, supra, and the judgment is therefore affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.