*1 1076 appealed, stated,
to set aside granted to this court. Under Clevenger the facts in case, we held that title to real estate ruling was not involved. In in that case said: controversy “No title plead was made ings adjudicated by or court. Title not contested nor dis ' pute. The court adjudicate was not called to and did not determine ‘adversely litigant title one favor of another’ ” litigant or ‘take give title from one Support to another.’ ing the reached, jurisdiction, conclusion on the Clevenger case, we McGauhey, cited Nettleton Bank v. Estate of Rawlings supra; Rawlings (Mo.), (2d) 367; Brockman v. St. Company (Mo.), Louis Union (2d) 1010; Trust 38 S. W. Kaufmann v. (Mo.), (2d) 555; Kaufmann 40 S. W. Mc Hull v. Cracken, 327 (2d) Mo. Devoto, Devoto (2d) Richardson, and Weil 7 S. (2d)W. meaning1 348. For involved, title to be within the Constitution, so as to court, “judgment confer in this adjudicate controversy. judgment must a title sought or ren dered must be such as will determine in some measure degree adversely litigant another; one and in favor of or as say, some of the eases litigant give must from take title one to another.” Bank McGauhey, v. Estate of [Nettleton (2d) l. c. and cases there present case cited.] Clevenger as in the rendered, including judg case overruling aside, ment or order the motion to set did not determine litigant “adversely of another,” favor and did litigant give not “take title from one it to another.” jurisdiction here,
For want of this cause should be transferred St. Ajjpeals, back to the Louis Court of and it Fergu- is so ordered. CG., Hyd.e, son and concur. foregoing opinion PER Bradley, C., CURIAM:—The adopted judges All opinion
as the concur. Morgan Will D. Appellants, and C. Resler, York, Albert Trustee, and 88 S. W. 146. Baer, Katherine Intervener. One,
Division November 1935. *2 John J. and Lon Kelly appellants. Wolfe G. Boy respondents. James and W. Grov.er Grimm for FERGUSON, equity C. This is a seeking enjoin suit a fore- closure sale under deed of trust and the cancellation of of trust promissory thereby. notes secured The trustee named in the deed of trust proceedings whereupon commenced foreclosure this suit was filed. Baer, One Katherine to be.the and holder trust, of the notes appeared secured the deed of as intervener. The land described in the is situate County McDonald and this suit was filed in the circuit court of county injunction temporary and a restraining order issued out By stipulation changed the venue was to the Circuit County Court of Newton upon hearing judg- where a decree and ment in making favor of temporary was entered in- junction' granted permanent theretofore but thereafter intervener’s motion for a Again new trial was sustained and a trial new ordered. by stipulation the venue of the cause transferred to the Circuit Jasper County Court of judgment where trial the decree and defendants, témporary was for injunction theretofore issued was plaintiffs’ dissolved and appeal Springfield went to the Court of Appeals theory transferred it to this court on the' that title to real estate is involved. duty any
Our first in this or other case is to determine whether jurisdiction we ground have appeal possible and as no other if exists this court has of this solely it is because title to real In pursuing inquiry involved. look to pleadings, evidence and to ascertain the decree real and deter minative issues and whether title to real estate in issue sought adjudicating with a controversy. or rendered a title enough that, is not to confer on this court title is collaterally. may indirectly, incidentally affected [Nettle McGauhey’s Estate, ton Bank v. en- understanding sought issues, An the relief requires On March tered facts in evidence. statement of the approximately Charles and wife tract of Henry C. Prater County, acres of McDonald from warranty date, wife, conveyed, by deed of that Prater and wife throughout the evidence wife. This land referred part payment land” “Prater or “Prater tract.” n notes, of purchase price promissory and wife executed three Sarah date, aggregating $6500, Henry C: payable even involved) (herein Prater, J. and secured same a deed tract; Albert York is the trustee the entire the defendant bearing interest notes, each named therein. The three eight semi-annually, were per annum, payable per at rate of cent follows: amounts, numbered and matured as year (March after date Note numbered due one (March 1926); date 2, $2000, after note numbered due three *3 (March 1928); 3, 9, .$2500, note date numbered due four after 1929). duly 10, March 9, record The deed of trust was filed for Dacy platted 1925. part Thereafter caused a of the land to be August to Elk-O-Zar.” On “First Sub-Division to Prater’s Addition Dacy by conveyed 18, 1926, wife, warranty and "William them.; by originally purchased S. from the all the land Hendrix. Praters, trust, except certain included in the deed of and described by a metes and bounds numbered lots and tract of land described , brevity evidence, statements but for referred to in the briefs and " paid as “a miscellaneous tract.” The consideration therefor Kelley by A. a dealer It seems one J'. of Kansas City. grantee deed, warranty nephew in the and a that Hendrix the named active, say in Kelley, part of and transaction had. Kelley made to Hendrix caused and directed the deed to be Kelley. man” for to Hendrix mere “straw who.-was deéd. The. “subject to, provides a certain deed of trust heretofore 9, by Dacy. wife, J. his of date March Dacy, Charles and Alta York 1925, to Albert to secure note or therein mentioned for notes .Henry aggregate $6500 of C. Prater and Sarah J. sum of in.favor has $1500 Prater on which been indebtedness paid and ’’ herein, agree grantee assigns and and assume In Novem- pay, "Dacy wife, warranty deed, conveyed ber, 1926, lots and the by land,” part original “miscellaneoiis tract of so-termed conveyed but which had not been tract them purchased “Dacy Hendrix, being excepted therefrom, Agency and to the conveyed Company, corporation.” land was Investment sub- .The Dacy ject to. York trustee lien of of to.the appears.that corporation took Praters as beneficiaries. It purchasers for various de- title as a mere trustee lands held Morgan, "plaintiff Later Will as an intervener the deed. scribed corporation, made receivership proceeding paid purchase price showing had he land,” original Prater tract of “miscellaneous tract conveyed Dacy Corporation wife and them to May out 28, 1927, divested of of title thereto was date Morgan subject “to the corporation and vested in Will S. “securing trustee, a bal- lien” of the to York interest;” the first $4500 ance in the sum of and accrued 1926, March principal in the which matured $2000 note sum outstanding. having paid principal remained been sum 1927” spring Plaintiff Eesler he testifies “in vague testimony is from Praters. The notes and deed acquired is immaterial as to how or when Eesler the notes but that assigned definitely that the notes transferred or shown August stated, prior supra, him 1927. As that time March $2000, sum which matured principal first fully leaving numbered had been the two notes aggregate $2000 and an respectively sum principal matured. $4500, outstanding as sum of neither August he Plaintiff Eesler testified either blank, together with notes, endorsed in and delivered these two sold Kelley.- was admitted that securing same to the deed of trust shortly filing Apparently suit. his testi- Kelley after the died mony by deposition intervener here- had not been taken. Baer the City, Missouri; that in Kansas that she was a school teacher testified through frequent purchased loans “at she had intervals” since aggregat- outstanding Kelley; *4 Lanagaii;” “purchased these Prater near that she property, down my possession through “they in' Kelley” Mr. have been and Kelley by I am still the they Mr. and since were to me delivered notes;” the sum and holder of the that she turned 4, 1927, he notes, Kelley May purchase the to on over in the to her until sometime did not deliver notes and deed of trust to May 4, 1927, she delivered checks September, and- that on Kelley aggregating held, secured $2978.25‘and two notes which she $1523.75, due,” by mortgages, aggregating coming “which and Kelley in used making a total sum turned over to to be so aggregating sum of Dacy principal purchasing *5 acquired plaintiff Morgan subsequently subject of which title how- Morgan’s to the lien ever of the deed of trust. title to that questioned the land to which he claims title is not or at issue herein. merger, claims occur; Intervener Baer that under the facts a did not maturity through that she the notes acting before 1081 agent as her for value that she became and bona fide holder is maturity before lien the purchased; the two so that the notes extinguished merger of trust deed was not live is against described; lien as subsisting all the land and that legal owner and to enforce holder of the two notes she is entitled lien. The trial court found the issues in favor of intervener Baer; good faith, that she before value and maturity “and ever since has still is the been and thereof;” holder that said were in ascertained *6 meaning . to estate is involved within that title real defining of Constitution of the Though may as a result be affected title to in ultimately is not title to real estate herein, asked and entered defining this court’s within of the Constitution
volved
jurisdiction
eases
Lisenby, supra, and the
appeal.”
Bonner v.
Klingelhoefer listed are
and in addition thereto
cited
Nelson,
Balz
Smith, 171 Mo.
979; and
Vandergrif
681, 59 S. W.
Brock, 158 Mo.
527;W.
S.
follow
“There was as Lindenman’s tioned, any question nor was there as
given by him, security payment thereon for the being true, note. That then the involved is.whether *7 alleged mortgage or not the mentioned satisfied reason of payment extension of the time se- without the consent of the curities. way in
“The decision of that does not other mentioned, court, therefore, volve the title to the has and this case, since there is but a small sum due unpaid Applying on said note.” in the instant case an illustration Gay Association, Saving Building used in v. Missouri & Guarantee suppose a"deed of trust instead of power sale, case, with as in created the lien had been sale; power without Baer had filed suit mortgage in Morgan, foreclose it and as a defense hot valid, pleaded petition herein as up .the same set his facts constituting merger extinguishment a payment, the lien. (cid:127)Could “a it be said that real estate matter title to issue (Nettleton McGauhey’s Es about which is a contest” Bank v.
tate, in a supra), is, title to was involved jurisdictional 45, 109 Hogan, 211 Mo. also, sense? Jones [See, 641; 999; Dubowsky v. Binggeli, 167 S. W. 474; (Mo.), (Mo.), Steffen Stahl Corbett v. Brown 108; Farrell (Mo.), Puthoff v. Walker Seelig (Mo.), 19 S. W. Following foregoing rule we think it laid down cases involved apparent case before-us title to real estate is not provision defining within the of the constitutional our appellate jurisdiction. stated, supra, As not plaintiff’s title was any questioned nor was attack made Primarily pleadings seek the trust. trust, admittedly in- whether or not the deed of its
as to lien; sole matter issue and the ception, is still thing adjudged by the trial court. It follows that determined and Springfield Appeals. the cause be transferred to the Court of must Hyde Bradley, GG., It is concur. so ordered. foregoing C., opinion adopt- PER CURIAM:—The Ferguson, judges All the concur. opinion of the court.
ed as the told her these two property, Elb-O-Bar. ing “on what was known'as the
Notes
two' original to memoranda sub- produced $4500. Miss Baer checks and plain- As have noted her statement the transaction. stantiate delivered two notes endorsed tiff stated that he sold*and Eesler Kelley 28, 1927, August Miss in blank and Baer on either says which was Kelley September,, 1927, her in delivered them to maturity date of note numbered six months or more before' the Morgan 1928, plaintiff June, of the two notes to mature. first executed his promissory in payable sum plaintiff by Resler lands secured same on certain including part described tract of land which had been by purchased Morgan Prater tract and to subject by the lien of the Miss deed of trust then held Baer. When thereafter Miss York, Baer directed the trustee named therein, to foreclose the deed he of trust and commenced the fore- by proceeding, Morgan closure publication statutory notice, brought injunction Resler suit. Plaintiff’s petition alleges bill or wife sold the land Kelley; described the deed to Hendrix J. A. “that at request Kelley” the instance of J. A. name Hendrix, nephew “William S. Kelley” said was “used as grantee deed;” thereby Kelley “took and received land;” and now holds title to the said described tract of “that Kelley the said . . . the said and the said Hendrix ex- pressly discharge assumed and pay undertook to off and the indebted- by by Dacys ness” secured purchased Praters; August, whole tract from the Kelley being “the said J. A. then the actual owner of the title to the said described and took over him paid” valuable consideration notes se- trust; acquiring cured “upon the deed of said notes . . A..Kelley . . . . the said J. the said indebtedness and lien thereof under the said deed became and extinguished against was as a property;” lien that “Katherine Baer right, to be the holder of the said notes has no same;” interest and to proceeding the foreclosure is a “wrongful design Kelley and fraudulent and scheme” part on the Baer; prays restraining enjoining for a order the fore- closure sale and that the deed of trust “be canceled and released as against a lien land” petition. described in the theory, Plaintiffs’ presented, Kelley and the sole issue is that conveyed Hendrix; the actual owner conveyance of the land agreed pay discharge “assumed and off and notes;” outstanding that he the two notes from Resler thereby paying thereupon merger them and that occurred “and “extinguished.” lien of the said of trust” It is con- Dacys ceded that the had title to the land at the time and that the deed of was valid when executed and created and con- described, stituted all land therein to a
default and thereon; found the amount lien of is due subsisting sold, lien and ordered the land described in etc. have held Ye that a suit cancel of trust or theory on grounds that it was ab or on other void initio fraud rendering it inception void in its involves to real estate and title ground. this court has an therein on that (2d) v. 58 Co., 327, Phoenix Trust [Phillips Mo. 318.] construing giving But “in Constitution, Section Article Supreme appellate involving Court of eases title estate, steadily to real ac we have to the construction that adhered adjudicate tions which only as to liens on real and do not estate involving affect the title are not actions within v. provision.” Schloman, of that [Stock Mo. our cases We refer to some of wherein estate, the continuance or existence of a admittedly inception, being its real matter essential or at issue we have held title to real was not involved jurisdictional Lisenby, sense. Bonner was a to cancel ground suit a deed of the debt given to paid. secure had This been court said: “There is no question belongs that the land to the and that is valid and that it is in it has been paid. force if not is, decree in ease this cannot affect is of title to decided. It is a of whether be mere not certain acts payments. constitute The land is incidentally validity affected. This is like case where not of the deed of trust is with attacked. accordance our-recent rulings we hold that give title to real estate is so as not involved jurisdiction. 203; Blankenship, 144 Mo. Roth [Price Co., 513; rock v. Lumber Railroad, Edwards v. 148 Mo. Gay Saving Building Assn., & 149 Mo. It was said 606.]” Christopher People’s Savings Association, Home & that “where, here, of the instrument itself, as such, question, sought upon not in but its cancellation ground solely given obligation that the debt to secure fully has been discharged or become it cannot