Opinion
No. 43167.
December 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, FRED E. MUELLER, J.
Paul J. Kaveney and Joyce Pueser, St. Louis, for defendants-appellants Frank R. Philpott and Clifford A. Falzone.
A. G. Schumacher, Clayton, for respondent.
Elmer W. Oehler and Eva A. Oehler [hereinafter called plaintiffs] filed this action to enjoin a threatened sale of real estate by the defendant Clifford A. Falzone, trustee, under the power of sale in a deed of trust securing the hereinafter mentioned $600 note owned and held by defendant, Frank R. Philpott. The threatened sale was sought to be enjoined on the ground that an action upon the note is barred by the applicable statute of limitations. Plaintiffs are the owners of the real estate.
After the sale of the property was advertised this action was filed on November 29, 1951, and the circuit court thereupon issued a temporary restraining order, and an order to show cause. Thereafter defendants filed their return to the show cause order and their answer. The parties submitted the cause to the court upon the pleadings. The court's judgment and decree ordered its permanent injunction to issue restraining the sale. Philpott and Falzone have appealed.
Plaintiffs' petition alleged that they owned the real estate in question in fee simple; that on March 5, 1932, they executed the principal note in question for $600, payable in three years after date, March 5, 1935, and concurrently therewith executed also their six semi-annual interest notes in the sum of $18 each; that all of the above notes were secured by their concurrently executed and recorded deed of trust conveying the real estate in question; that there was no agreement executed extending or renewing said notes beyond their due date of March 5, 1935, and that no payment of either principal or interest was ever made thereupon.
Plaintiffs also alleged that more than ten years has "lapsed as to the date said note became due and payable"; that Section 516.110 [all statutory references are to RSMo 1949, V.A.M.S., unless otherwise indicated] provides that an action upon any writing for the payment of money or property shall be commenced within ten years; that the statutes of limitation have run against the bringing of any action on said notes or deed of trust; that under Section 516.150 no action under the power of sale to foreclose any deed of trust executed to secure any obligation to pay money shall be maintained after such obligation has been barred by the statutes of limitation. Plaintiffs' petition prayed merely that defendants be enjoined from proceeding with the sale under said deed of trust.
The answer of defendants, Falzone and Philpott, admitted: (1) that plaintiffs were owners in fee simple of the real estate; (2) the alleged execution by plaintiffs of the above notes and deed of trust, and the recording; (3) that no payments were made on the debt evidenced by the notes, and that (4) no agreements were made extending or renewing the debt beyond March 5, 1935. The answer alleged that on August 30, 1951, defendants caused to be filed and recorded in the office of the Recorder of Deeds in and for the county where the real estate was located the certain affidavit of one Paul J. Kaveney, that plaintiffs then owed the debt of the above notes to Frank R. Philpott; and that the obligation of the debt is secured by the above mentioned deed of trust which had been filed in said Recorder's office. The answer prayed merely the dismissal of plaintiffs' petition.
In its judgment and decree the court found that "the obligations secured by the deed of trust described in the pleadings had become and were barred by the statute of limitations of this State at the time of the recording of the affidavit alleged in defendants' answer and at the time of the advertisement under the power of sale contained in the deed of trust"; found the issues in favor of plaintiffs; decreed defendants had no right to foreclose and ordered the issuance of the permanent injunction.
Do we have jurisdiction of this appeal? The brief of defendants-appellants asserts that this Court has jurisdiction of the appeal by virtue of Section 3 of Article V of the Constitution because this case involves the title to real estate. Clearly, unless this case is one involving the title to real estate it must be transferred to the St. Louis Court of Appeals.
In this case the plaintiffs allege they are the owners of the fee simple title to the real estate and that fact is admitted by defendants. The only relief prayed by plaintiffs is that defendants be enjoined from proceeding with the sale under the deed of trust. Alleging that they have complied with Section 516.150 of the statutes by the filing of an affidavit, defendants pray merely that plaintiffs' petition be dismissed. The ultimate and basic issue before the trial court was the mere enforceability or non-enforceability of the lien of the deed of trust. And while the pleadings also present an issue calling possibly for the construction of a statute, the constitutionality or validity of such statute is not here involved. The Court of Appeals has jurisdiction to construe statutes when that is necessary in the determination of cases of which such court has jurisdiction.
The title to the real estate is not here in issue, nor is it involved, nor is there any contest respecting title. No possible judgment upon the issues tendered by these pleadings would have determined title in any degree adversely to one of these parties and in favor of the other. It would not give this court jurisdiction that, upon the issues here tendered, the trial court might have entered a judgment which, when carried into execution or followed up, might ultimately have affected title. Merely that the tendered issues were such that the court below might have entered a judgment from which it would have followed that the lien of the deed of trust was enforcible would not give this court jurisdiction. No judgment the court could here have entered could take title from one litigant and place it in the other. The only possible issue here to be contested or determined was whether the lien of the deed of trust was enforcible.
Under these circumstances the title to real estate is not involved within the above mentioned section of the Constitution. Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W.2d 771; Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428; Milby v. Murphy, Mo.App., 121 S.W.2d 169, 172; Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291; Hanssen v. Karbe, Mo.Sup., 106 S.W.2d 415.
The cause is accordingly transferred to the St. Louis Court of Appeals. It is so ordered.
All concur.