Harrell v. SurfaceHarrell v. Surface
- Reporters:
- , ,
- Before:
- Bradley, Hyde, Dalton (per curiam)
Defendant, Himmelberger-Harrison Lumber Company, held a deed of trust on the land antedating the Surface deed of trust, but that deed of trust was paid off, and thе lumber company filed a disclaimer. Defendants, Burlock and Walker, were tenants on the land, and did not answer. Neither did the Surfaces answer. Defendants, Deschamp, husband and wife, answered separately; denied that plаintiff had any right to foreclose, and claimed to own the land free from any claimed lien of the deed of trust.
In chronological order, the facts are as follows: September 17, 1924, plaintiff and John F. Lilly sold the land to defendant, Walter J. Surface, and on same date Surface and wife executеd deed of trust on the land to secure a note for $1814.00, due in 10 years, and given as a part of the purchase price of the land. Shortly thereafter, and prior to any tax sale of the land, plaintiff and Lilly endorsed the $1814.00 notе and delivered it to Dr. T. P. Fristoe, as collateral, to secure an obligation owed him by plaintiff, but plaintiff obtained the note from Dr. Fristoe before this сause was filed. November 4, 1935, the Little River Drainage District brought suit for delinquent taxеs against the land for the years 1930-1934, but neither plaintiff nor Dr. Fristoe was made parties. The drainage tax suit went to judgment and the land was sold under the judgment on Deсember 8, 1936, to the Cornucopia Farms, Inc. November 3, 1937, the land was sold (third sale) under the Jones-Munger law for delinquent state and county taxes, to Harry and Emma Woodruff, and a certificate of purchase was issued to them. January 10, 1938, Cornucopia Farms, Inc., who purchased at the drainage tax sale, conveyed the land to M. G. Gresham, and, on the same day, Gresham convеyed to defend
At the threshold of the merits we are confronted with the quеstion of jurisdiction. It is stated in plaintiff‘s brief that the appeal was to the Supreme Court because title to real estate is involved, but it is not shown how titlе is involved. Our jurisdiction, however, is not challenged, but whether challenged or nоt, it is our duty, when the question arises, to determine such question. [Perkins v. Burks et al. (Mo.), 61 S. W. (2d) 756.]
The relief sought by the рetition is foreclosure and judgment against the Surfaces on the deficiеncy, if any, after foreclosure. The answer of defendant, Mayme Deschamp, was a general denial. The answer of defendant, Russell Deschаmp, pleads the tax sales and the collector‘s deed as a bar to plaintiff‘s right to foreclose. The determination of title is not asked by еither side. An action to foreclose a real estate mortgagе or deed of trust on real estate does not involve title to real еstate within the meaning of
The cause should be transferred to thе St. Louis Court of Appeals. It is so ordered. Hyde and Dalton, CC., concur.
PER CURIAM:—The foregoing opinion by Bradley, C., is adopted as the opinion of the court. All the judges concur.