Cordia v. Matthes

• Decision Date: 06 December 1938
• Docket Number: No. 24588.,24588.
• Citation: 122 S.W.2d 32
• Parties: CORDIA et al. v. MATTHES et al.
• Court: Missouri Court of Appeals

122 S.W.2d 32

CORDIA et al. v. MATTHES et al.

No. 24588.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Appeal from St. Francois Circuit Court; Taylor Smith, Judge.

"Not to be published in State Reports".

Suit in equity by Clara Cordia and another against M. C. Matthes, trustee, and another, to cancel two trustee's deeds made by the named defendant, as substitute trustee pursuant to foreclosure sales under two deeds of trust. From an adverse decree, the plaintiffs appeal.

Cause transferred to the Supreme Court.

Samuel Richeson, of Potosi, and W. A. Brookshire, of Farmington, for appellants.

T. E. Francis and Woodward & Evans, all of St. Louis, for respondents.

SUTTON, Commissioner.

This is a suit in equity to cancel two trustee's deeds, made by M. C. Matthes as substitute trustee pursuant to foreclosure sales under two deeds of trust, conveying to Frank Dietrich as special deputy finance commissioner in charge of the Peoples Bank of DeSoto real estate situate in Washington County. One of these trustee's deeds, which is dated February 25, 1933, and is recorded in book 78 at page 486 of the deed records of Washington County, conveys to said Dietrich as special deputy finance commissioner a tract of land described as lot 1 in survey No. 3020 in Washington County, and the other, which is dated February 25, 1933, and is recorded in book 78 at page 484 of the deed records of Washington County, conveys to said Dietrich as special deputy finance commissioner lots 91 and 92 in the city of Potosi in Washington County.

The suit was commenced in Washington County, and went on change of venue to St. Francois County.

The petition alleges as grounds for the cancellation of said trustee's deeds (1) that M. C. Matthes as substitute trustee appointed by the circuit court was not qualified to act as trustee, and (2) that the prices for which the foreclosure sales were made are so grossly inadequate as to evidence fraud.

Defendants in answer to the petition admit the execution of the trustee's deeds pursuant to foreclosure sales by M. C. Matthes as substitute trustee under the deeds of trust, deny generally the other allegations of the petition, and plead res adjudicata and estoppel by way of affirmative defenses.

The chancellor by his judgment found that all the right, title, and interest of the plaintiffs in and to the real estate described in said trustee's deeds was conveyed by said trustee's deeds to said Frank Dietrich as special deputy commissioner of finance in charge of the business and the property of the Peoples Bank of DeSoto, and concluded as follows: "Now, therefore, be it ordered, decreed, and adjudged by this court that all of the right, title, and interest in and to the above described real estate is now well vested in Frank Dietrich, as Special Deputy Commissioner of Finance in charge of the business and property of the Peoples Bank of DeSoto, Missouri; that plaintiffs take nothing by this suit; and that defendants be and are dismissed with their proper costs, and that execution issue therefor."

Plaintiffs appeal.

Defendants contend that this is a case "involving title to real estate" within the meaning of section 12 of article 6 of the constitution, Mo.St.Ann.Const. art. 6, § 12, and that therefore jurisdiction of this appeal is in the supreme court. Plaintiffs, however, contend that title to real estate is not involved, and that jurisdiction is in this court.

Plaintiffs rely on Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, and State ex rel. Ross v. Martin, 338 Mo. 1067, 93 S.W.2d 911.

The Nettleton Bank Case originated in the probate court. It was a proceeding to sell the widow's homestead to pay debts alleged to have been legally charged thereon in the lifetime of the deceased. An order of sale was made by the probate court, and the administratrix appealed to the circuit court. The circuit court similarly ruled, and the administratrix appealed to the supreme court. The supreme court, in an illuminating opinion by Judge Ellison, held that title to real estate was not involved, and in so holding announced as the established rule that to involve title to real estate within the meaning of the constitution the judgment must adjudicate a title controversy; that the judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; that it is not enough that the judgment, when carried into execution, will effect the title to real estate, but the title must be involved in the suit itself, and be a matter about which there is a contest.

Plaintiffs in the present case by their petition seek the cancellation of the trustee's deeds made under the foreclosure sales. These deeds are muniments of title. They constitute the public record which declares to the world that the title is in Frank Dietrich as special deputy finance commissioner. Without them the title would in fact and according to the record be in the plaintiffs. The judgment to be rendered, if plaintiffs succeed, will therefore strike down and cut out, root and branch, these muniments of title, and the effect of a judgment in plaintiffs' favor will be to divest the title out of Dietrich and revest it as it was before the deeds were made.

Both the pleadings and the judgment bring this case clearly within the rule announced in the Nettleton Bank Case. The judgment, responsive to the pleadings, adjudicates a title controversy. It directly determines a disputed title.

In the Nettleton Bank Case the title to the real estate involved was not in dispute. The controversy was with respect to whether or not the real estate should be sold and the title transferred to another for a consideration to pay a debt or debts of the deceased. The proceeding to sell the real estate was not in any sense a proceeding to determine or adjudicate a disputed title. It was a proceeding not to...