Dubowsky v. Binggeli

• Decision Date: 26 May 1914
• Docket Number: No. 16,390.,16,390.
• Citation: 258 Mo. 197,167 S.W. 999
• Parties: DUBOWSKY v. BINGGELI et al.
• Court: Missouri Supreme Court

167 S.W. 999

258 Mo. 197

DUBOWSKY v. BINGGELI et al.

No. 16,390.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. COURTS (§ 39)—JURISDICTION—TRANSFER OF CAUSES—NECESSITY FOR MOTION.

The Supreme Court will ascertain whether it has jurisdiction of an appeal, even though no motion has been filed to transfer the cause, since the jurisdiction is constitutional, and cannot be conferred by stipulation or acquiescence of the parties.

2. COURTS (§ 231)—JURISDICTION—SUPREME COURT—LIENS UPON REAL ESTATE.

Actions to foreclose mortgages or to establish other liens upon real estate do not involve the title to real estate so as to confer jurisdiction of appeals in such actions upon the Supreme Court.

3. COURTS (§ 231)—JURISDICTION—SUPREME COURT—CANCELING DEED OF TRUST.

A suit to cancel a deed of trust in which it is admitted that the deed of trust was given to secure a valid indebtedness, and the only issue is whether the indebtedness has been paid, is not one affecting the title to real estate, and the Supreme Court has no direct appellate jurisdiction.

4. COURTS (§ 231)—JURISDICTION—SUPREME COURT—CANCELING RELEASE OF DEED OF TRUST.

A suit to set aside an alleged improper release of a deed of trust to foreclose the deed of trust, where the original validity of the deed is not disputed, does not involve the title to real estate so as to give the Supreme Court appellate jurisdiction.

5. COURTS (§ 231)—APPELLATE JURISDICTION —DETERMINATION OF CONSTITUTIONAL QUESTIONS—TIME FOR PRESENTATION OF QUESTION.

In a suit to set aside a release of the deed of trust and to foreclose the deed, the objection that by judgment for the plaintiff defendants would be deprived of their property without due process of law, as prohibited by Const. art. 2, § 30, which was not raised until motion in arrest of judgment, was presented out of time, and does not authorize an appeal to the Supreme Court.

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Action by Rosie Dubowsky against Hannah Binggeli and others. Judgment for plaintiff, and defendants appeal. Cause transferred to the Court of Appeals.

This is an action to set aside the release of a deed of trust and to foreclose the same. The plaintiff had judgment below for $602.33, and defendants appeal. It is alleged in plaintiff's petition that she loaned $500 to one Christian Binggeli in the year 1897, and that her brother-in-law, Stephen Ushler, at the same time, loaned to said Binggeli $500; that it was agreed between plaintiff, said Binggeli, and Stephen Ushler that said Binggeli would execute to plaintiff and said Ushler his separate promissory notes for said loans, and secure the same by a deed of trust (in the nature of a mortgage) upon 40 acres of land owned by said Binggeli in De Kalb county, Mo.; that no note was executed to plaintiff for said $500 so borrowed of her, but in lieu thereof the said Binggeli and his wife executed to Stephen Ushler a single note for $1,000, and secured the same by a deed of trust, which note and deed of trust were intended by said Binggeli and said Stephen Ushler to cover the aforesaid loan of $500 made by plaintiff, as well as the $500 which said Ushler had loaned to said Binggeli, as hereinbefore recited. Plaintiff further alleges that Christian Binggeli paid to said Stephen Ushler $620 on the aforesaid note, and that $110 of said payments on said note were for the use and benefit of plaintiff, which $110 she received; that said Stephen Ushler, on March 12, 1903, entered a release upon the land records of De Kalb county, purporting to fully release and discharge the land of said Binggeli from the lien of the aforesaid deed of trust, which said release was wrongful and illegal, because said Binggeli had not paid to plaintiff, nor to said Ushler for her, the balance due her on the aforesaid loan, which indebtedness said deed of trust was given to secure. Wherefore plaintiff prayed that the release of the deed of trust so entered by said Ushler be set aside, and that plaintiff have judgment for the balance due her on her aforesaid loan to Christian Binggeli; and that said judgment be made a special lien against the interests of defendants in the land conveyed by the afore-said deed of trust. Plaintiff did not pray for the reformation of the deed of trust. Christian Binggeli died intestate before the institution of this suit, and the defendants (except Ushler) are his widow and children. The answer of defendants is (1) a plea of the statute of limitations; (2) the statute of frauds; and (3) laches.

Wm. M. Fitch, of ...