Briscoe v. Longmire

• Decision Date: 17 May 1910
• Citation: 128 S.W. 521,148 Mo. App. 594
• Parties: BRISCOE et al. v. LONGMIRE et al.
• Court: Missouri Court of Appeals

128 S.W. 521

148 Mo. App. 594

BRISCOE et al. v. LONGMIRE et al.

St. Louis Court of Appeals. Missouri.

May 17, 1910.

1. COURTS (§ 488)—TRANSFER OF CAUSE TO SUPREME COURT—RETURN OF CASE TO COURT OF APPEALS—PRESUMPTIONS.

Where the Court of Appeals transfers a case to the Supreme Court as directly involving title to real property, within the exclusive appellate jurisdiction of the Supreme Court, and the Supreme Court on motion sends the case back to the court of appeals for determination, it will be presumed that it conclusively determined that the case was not one in which the title to real estate is directly involved.

2. VENUE (§ 5)—JURISDICTION—SUIT AFFECTING TITLE TO LAND.

A suit to restrain the sale of land under a trust deed, on the ground that the mortgagee in seeking to relieve himself of the requirements of the third constitutional amendment of 1900 requiring him to pay taxes on the mortgage debt induced the mortgagor to execute the notes and the mortgage securing them to secure and guarantee the payment of all taxes on the property and on the mortgage debt during the existence of the debt, and that the makers of the notes had paid all the taxes, and that neither the mortgagee nor his assignee had at any time paid any of the taxes, so that there was no consideration for the notes, is not a suit whereby title to real estate may be affected, which under the statute must be brought in the county where the real estate is situated.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Adaline Briscoe and others against W. W. Longmire and others. Judgment of dismissal, and plaintiffs appeal. Reversed and remanded, with directions.

Benj. E. Hulse and J. O. Allison, for appellants. Ragland & McAllister, for respondents.

REYNOLDS, P. J.

In the petition in this suit, instituted in Monroe county, plaintiffs pray that a certain deed of trust covering lands in Ralls county be adjudged null and void and not a lien on the real estate described in it; that the deed of trust be set aside and canceled of record, and that five promissory notes, each for the sum of $45 hereinbefore described, be adjudged null and void and canceled; and that the defendant in each of them be perpetually restrained and enjoined from proceeding under the deed of trust to foreclose or sell the real estate or any part thereof, and that in the meantime a temporary injunction be allowed and granted restraining the defendants and each of them from proceeding to foreclose and sell the real estate hereinbefore described in the deed of trust, with a prayer for general relief. The ground stated in the petition for the cancellation of the notes is that there was a total failure of consideration as to the notes; that at the time of the execution of the notes the third constitutional amendment to the Constitution of Missouri, adopted in 1900, and relating to the taxation of mortgages, deeds of trust, and other contract liens securing debts, had not been "overturned" by the Supreme Court of this state (see Russell v. Croy, 164 Mo. 69, 63 S. W. 849); that the payee of the notes, who was the mortgagee seeking and endeavoring to relieve himself of the requirements of the constitutional amendment requiring him to pay the taxes on the mortgage debt of $3,000, had induced and required the mortgagor to execute these notes and the mortgage securing them, to secure and guarantee the payment of all taxes levied and assessed on or...