Opinion
No. 43425.
December 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY.
W. A. Brookshire, Columbia, for appellants.
Roberts Roberts, Farmington, for respondent.
W. Boesel and Margaret Baker filed this suit against William H. Perry and K. C. Weber, Trustee, praying that the foreclosure of a deed of trust upon certain described real estate in St. Francois County, Missouri, be enjoined, and to cancel said deed of trust. A temporary injunction pendente lite was granted against the threatened foreclosure. The answer of the defendants asked that the temporary injunction be dissolved and that defendants be allowed to foreclose the deed of trust. The chancellor found the issues for the defendants, dissolved the temporary injunction, dismissed plaintiff's petition, and assessed the costs against plaintiffs. Counsel for plaintiffs considered the suit involved the title to real estate and prosecuted an appeal to this court. A summary of the facts material here, fully covered by the pleadings, follow:
Defendant Perry conveyed the title to the real estate by warranty deed to plaintiffs as a single man.
Plaintiffs, on August 7, 1950, executed and delivered their deed of trust, naming K. C. Weber as trustee, on said real estate to secure the payment of their $4,000 note of even date, payable $100 each month, with interest at the rate of 6% per annum, to defendant Perry.
Developments occurred giving plaintiffs concern over defendant Perry being single and unmarried at the time he executed his deed to them and, consequently, their title to the real estate, and in April, 1951, they took this matter up with the attorney to whom they had been forwarding the monthly payments on the $4,000 note. The ensuing negotiations resulted in defendant Perry, who had been separated from Mrs. Perry for a number of years and had been informed she had procured a divorce, instituting suit for and securing a divorce from Mrs. Perry.
Plaintiff Baker and her husband, on May 19, 1951, executed and delivered their quitclaim deed to said real estate to plaintiff Boesel.
On February 25, 1952, defendant Perry, as "a single person (divorced from Gertrude Perry, his former wife)," executed and delivered to plaintiffs a quitclaim deed to the real estate involved. The attorney who prepared this deed did not then have actual knowledge that plaintiff Baker had deeded her interest to plaintiff Boesel.
The parties agreed that there remained due $2,200, principal amount, with interest from March 7, 1952, on plaintiffs' $4,000 note.
On May 15, 1952, defendant Perry caused defendant Weber, as Trustee in the deed of trust, to give notice of the sale of said real estate under said deed of trust on June 2, 1952, to satisfy the secured debt of plaintiffs. This suit followed.
We are of opinion that title to real estate is not involved so as to vest jurisdiction in this court over the appeal under Art. V, § 3, Mo.Const. 1945, V.A.M.S.
Plaintiffs say that all the rights of defendant Perry under the deed of trust were extinguished by his quitclaim deed of February 25, 1952; that defendants "are not entitled to foreclose on the real estate"; and that the temporary injunction should have been made permanent.
Suits to enforce or enjoin the enforcement of liens against real estate, admittedly valid in their inception, do not involve title to real estate so as to confer appellate jurisdiction here. Farrell v. Seelig, Mo.Sup., 19 S.W.2d 648, 650[3]; Brutcher v. Fitzsimmons, 343 Mo. 547, 122 S.W.2d 881, 882; Heman v. Wade, 141 Mo. 598, 601, 43 S.W. 162, 163. There is no claim that the deed of trust was void ab into as in Hendrix v. Goldman, Mo. Sup., 92 S.W.2d 733[1], and other like cases.
In Weil v. Richardson, 320 Mo. 310, 7 S.W.2d 348, 350[2], the plaintiffs sued to enjoin the sale of certain real estate levied upon as the property of a judgment debtor, plaintiffs claiming the title in themselves and also that the judgment on which the execution was issued was void. The court sustained the contention that the judgment was void. This court, in addition, stated that even had the court found that the sale should be enjoined because the real estate belonged to plaintiffs and the judgment debtor had no interest therein, title to real estate would not have been involved so as to vest appellate jurisdiction here.
In Morgan v. York, 337 Mo. 1076, 88 S.W.2d 146, it was contended that, subsequent to the execution of a deed of trust, a straw party, assuming and agreeing to pay the secured indebtedness, acquired title to the real estate for another person; that said other person, the actual owner, later became the owner of the notes secured by the deed of trust; that thereupon a merger occurred and the indebtedness and lien were extinguished, and a subsequent purchaser of the notes and deed of trust acquired no interest therein and was not entitled to foreclose. We held appellate jurisdiction was in the Court of Appeals.
In a case wherein a husband sought the reformation of a deed of real estate to his wife so that, after reformation, said deed would show the husband as cograntee with the wife, for an accounting and a lien for the money due, and for partition, in which the court found $1,463.63 was due from the wife to the husband and decreed a lien against the real estate for said amount, but did not rule upon the prayer for reformation or partition, we said in transferring the cause to the court of appeals upon the wife's appeal: "For this Court to have jurisdiction the title to real estate must, in some way, be directly affected by the judgment. That the question of title may be incidentally, collaterally or even necessarily inquired into to settle the issues is not sufficient. The judgment itself must directly affect the title." Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291, 293. See also Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W.2d 771, 774 et seq; Weil v. Richardson, supra; Stock v. Schloman, 322 Mo. 1209. 18 S.W.2d 428, 430[4-6]; Peatman v. Worthington Drainage Dist., Mo.Sup., 168 S.W.2d 57, 59; Musso v. S. C. Realty Construction Fin. Corp., Mo., 29 S.W.2d 52, 54.
In the instant case neither party sought relief with respect to the title or asked that it be adjudicated, and, as stated, the title was not passed upon. The primary purpose of the pleadings on both sides was the judgment of the court on whether the deed of trust, admittedly valid in its inception, was still an enforceable lien. If it be necessary to inquire into the title, it is only incidentally or collaterally, and not directly, involved. The effect of the quitclaim deed of February 25, 1952, from defendant Perry to plaintiffs, is presented as an issue only in so far as it may affect defendants' right to foreclose the deed of trust. The courts of appeals may properly inquire into the matter of title when incidentally involved. Cases last paragraph supra; Heman v. Wade, 141 Mo. 598, 601, 43 S.W. 162, 163; Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882, 883 [2-4]; Townsend v. Lawrence, Mo.Sup., 262 S.W.2d 55.
Plaintiffs' prayer to cancel the deed of trust is but an effort to put a judicial end to the originally valid lien of said deed of trust. Corbett v. Brown, Mo.Sup., 263 S.W. 233, 234; Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428. 432[7,8]. See among other cases, Vandeventer v. Florida Savings Bank, 232 Mo. 618, 622(I), 135 S.W. 23, 24; Bonner v. Lisenby, 157 Mo. 165, 57 S.W. 735; Christopher v. People's Home Sav. Ass'n, 180 Mo. 568, 79 S.W. 899; Puthoff v. Walker, Mo.Sup., 239 S.W. 108; Hanssen v. Karbe, Mo.Sup., 106 S.W.2d 415, 416[4].
The cause is transferred to the St. Louis Court of Appeals.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.