Nearen v. Bakewell, 40 Mo. App. 625

Nearen v. Bakewell

40 Mo. App. 625 | Mo. Ct. App. | 1890

Rombauer, P. J.,

delivered the opinion of the court. •

This is an action to rescind a sale of eighty acres of land, to reinvest the defendants with the title thereto, and to compel them to give up for cancellation ten promissory notes, part of the purchase money, and a deed of trust to secure the same, given by the plaintiffs to the defendants. The ground on which the contract is sought to be rescinded is fraud in the sale.

The first question which we are bound to determine is our own'jurisdiction of the appeal. That jurisdiction depends on the proposition as to whether the action is one involving title to real estate within the meaning of the' term as used in the constitution. The supreme court has impliedly decided in Springer v. Kleinsorge, 83 Mo. 155, that an action to recover from a bidder *626at auction the purchase price of the land, where the defense was fraudulent by-bidding, was an action involving the title to real estate. Although the amount in that case involved less than twenty-five hundred dollars, this court granted an appeal to the supreme court On the sole ground that it involved title to real estate, and the latter court retained jurisdiction. In Isaacs v. Skrainka, 18 Mo. App. 323, the action was for specific performance and the amount of the purchase money was less than twenty-five hundred dollars. This court transferred the case to the supreme court, holding that it involved title to real estate, and the supreme court retained and decided it. Isaacs v. Skrainka, 95 Mo. 517.

There can be no difference in principle between actions enforcing, and those avoiding, the sale of real estate, as far as they both bear upon the question of title to real estate. Springer v. Kleinsorge, supra, was of the latter class, and Isaacs v. Skrainka, supra, of the former. The supreme court necessarily decided in both that they involved title to real estate. We might also refer to Baier v. Berberich, 77 Mo. 413, where it was held that a suit seeking a divestiture of title out of A. into B. on the ground of trust was a case involving a title to real estate, and to Dunn v. Miller, 18 Mo. App. 136; s. c., 96 Mo. 324, where it was held that a suit, seeking to cancel a forged deed and to annul a judgment in ejectment based thereon, was likewise an action involving title to real estate.

The nature of the present action is twofold. • It seeks to ,enjoin a sale, to compel the cancellation of certain notes, to divest the defendants’ title under the deed of trust, and to avoid the plaintiffs’ title under the defendants’ deed to them. As it is admitted by the evidence that the action was brought after condition broken, the defendants under the decisions in this state held the legal title under the deed of trust, as distinguished from a mere lien. Johnson v. Houston, 47 *627Mo. 227. Hence, tlie action involves title to real estate in either aspect oí the case, and the supreme court has exclusive jurisdiction of the appeal.

It is ordered that the record in this case, with a certified copy of this order of transfer, be at once sent to the supreme court.

All the judges concur.