149 Mo. 606 | Mo. | 1899
This is a suit in equity to enjoin the defendants from selling plaintiffs land under a deed of trust. The appeal came to this court doubtless on the assumption that title to real estate is involved.
Tbe plaintiff’s testimony tended to prove tbat tbe transactions relating to taking out both tbe insurance policies was conducted by tbe agents of defendant company; tbat neither
The theory of the plaintiff’s case is that defendant company having undertaken to attend to the insurance feature of the business and managed it so negligently that plaintiff lost the $800 which, with what he had previously paid^ and the $200 collected from the Royal company, would have extinguished his debt, it would be inequitable to allow the defendant company to sell his land as by the strict letter of the deeds of trust unrelieved in equity it could do. In other words the plaintiff’s contention is that upon an equitable statement of the account he would be entitled to a credit of $800 which would extinguish the mortgage debt. How is the title to real estate involved in that controversy ?
The validity of the deeds is not questioned. If the decree should be in plaintiff’s favor the effect would be that he would have credit on his mortgage debt for $800 in addition to undisputed credits, and if that were sufficient to cancel the debt the decree would be that the mortgage was satisfied ; if not sufficient to cancel, then the decree would ascertain the balance of the mortgage debt remaining unpaid and direct foreclosure for that amount. In any event it is only a question of the amount of money due on the mortgage debt.
Suppose instead of being a deed of trust it was simply a mortgage, and defendant had filed a suit to foreclose it, and the plaintiff for defense had pleaded the facts he now pleads, not claiming that the mortgage was invalid, but that these conditions existed that entitled him in equity to a credit of $800 on the mortgage debt? Could it be said that title to real estate was involved ?
It is not sufficient in order to give this court jurisdiction that title to real estate may be collaterally affected by the judgment, but it is essential that the title be involved in
The title to tbe plaintiff’s real estate is not involved in this suit, and no other ground appearing, this court is without jurisdiction; therefore the'cause is transferred to tbe Kansas City Court of Appeals.