Little v. Reid

• Decision Date: 03 November 1897
• Citation: 141 Mo. 242,42 S.W. 674
• Parties: LITTLE v. REID.
• Court: Missouri Supreme Court

42 S.W. 674

141 Mo. 242

LITTLE v. REID.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

SUPREME COURT — JURISDICTION — QUESTION OF TITLE.

In an action to foreclose a deed of trust, a general denial and special plea of the statute of limitations do not raise a question of title, so as to give the supreme court jurisdiction on appeal.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by J. M. Little against James H. Reid and others to foreclose a deed of trust. From judgment in favor of plaintiff, defendant Reid appeals. Certified to the appellate court.

N. T. Gentry and W. M. Williams, for appellant. Turner, Hinton & Turner, for respondent.

BARCLAY, J.

This action was begun April 19, 1895. The plaintiff is J. M. Little. The defendants are James H. Reid, as administrator of the estate of Daniel Bentley, deceased, Matilda Bentley (the widow of Daniel), and Joseph Little. The objects of the action are to foreclose a mortgage or deed of trust conveying certain real estate, and to obtain a judgment for the debt thereby secured. The deed of trust in the nature of a mortgage, which is the foundation of the action, was executed by Daniel Bentley and his wife, Matilda, October 3, 1882, to secure a note to plaintiff for $650, payable 12 months after date, with interest at 8 per cent. per annum, to be compounded annually. Joseph Little was named as trustee, with certain powers of sale in event of default. This deed of trust was properly recorded. The land conveyed thereby as security consisted of some 90 acres in Boone county. June 8, 1892, Mr. Bentley died, intestate. His widow remained in possession of the land, but no administration was had upon his estate until April 5, 1895, when the probate court ordered defendant James H. Reid to take charge as public administrator.

The foregoing exhibits the special features of the petition, which, in other respects, states an ordinary case for the foreclosure of the mortgage. The trustee and the widow, who are defendants, filed no answer. The administrator defended. He admitted the death of Mr. Bentley, and his own status as personal representative, but denied the other allegations of the petition. The answer also set up the following special defenses: "And for his further answer, this defendant says that plaintiff is estopped from bringing or maintaining this suit, for the reason that more than ten years have expired prior to the institution of this suit since the execution of the note and deed of trust described in plaintiff's petition, and that the same are now more than ten years old, and are, therefore, barred by the statute of limitations of the state of Missouri, which this defendant sets up and pleads as a special defense in bar of plaintiff's recovery in this action. And this defendant would also plead and rely upon, as a special defense to the foreclosing of the deed of trust described in plaintiff's petition, the act of the general assembly of the state of Missouri, passed and approved February 18, 1891." The reply to the answer is a general denial. At the trial, defendant offered to prove that the deceased, Mr. Bentley, had been in adverse, open, notorious, and peaceable possession of the premises in controversy, claiming the same against the interest of every one, including plaintiff, from 1872 until his death, in 1892. The learned trial judge, however, rejected that offer, and excluded all testimony thereunder. It will not be necessary to go into further particulars of the trial. It will suffice to say that the court ultimately found for plaintiff, decreed a foreclosure, adjudged the sum of $1,729.75 to be due on the note secured, and directed the demand to be certified to the probate court for allowance of any residue that might remain due after the foreclosure sale which was decreed. The defendant appealed from the decree, after certain motions and other steps in the...