Little v. Reid

• Decision Date: 03 November 1897
• Citation: Little v. Reid, 42 S.W. 674, 141 Mo. 242 (Mo. 1897)
• Parties: Little v. Reid et al., Appellant
• Court: Missouri Supreme Court

42 S.W. 674

141 Mo. 242

Little v. Reid et al., Appellant

Supreme Court of Missouri, First Division

November 3, 1897

Appeal from Boone Circuit Court. -- Hon John A. Hockaday, Judge.

Transferred to Kansas City Court of Appeals.

N. T Gentry and W. M. Williams for appellant.

(1) The court erred in permitting any evidence whatever to be introduced on the part of plaintiff, for the reason stated in defendant's objections to the introduction of any evidence. Sufficient facts were not stated to any equitable relief; and even if all the facts as stated were true, they did not constitute a cause of action. No reasons were given why plaintiff had slept on his rights for so many years, nor why he had failed to have the trustee to advertise under the deed of trust, and sell the land before the note was barred by the statute of limitations. Johnson v. Buckner, 4 Mo. 624; R. S. 1889, sec. 6774; Johnson v. Johnson, 81 Mo. 331; Bush v. White, 85 Mo. 358. (2) Error was also committed by the court in refusing to permit defendant to prove that Daniel Bentley had been in the open, adverse notorious and peaceable possession of the land from 1872 to 1892, claiming the same against the interest of every person whomsoever, including the plaintiff. The mortgagor may hold adversely to the mortgagee, and ten years of such holding will be a bar to the mortgagee's recovery. Benton Co v. Czarlinsky, 101 Mo. 275; Booker v. Armstrong, 93 Mo. 49; Gardner v. Terry, 99 Mo. 523; Sherwood v. Baker, 105 Mo. 472; Chouteau v. Riddle, 110 Mo. 366; St. Louis v. Priest, 103 Mo. 652; 2 Jones on Mortgages, secs. 1194 and 1195. (3) Plaintiff objected to this evidence on the ground that "defendant's answer did not set up the defense of adverse possession." "A plea of the statute of limitations is simply a denial of plaintiff's title; it can have no other legal effect; it need not be pleaded." Nelson v. Brodhack, 44 Mo. 596; Ellis v. Murray, 28 Miss. 129; Holmes v. Kring, 93 Mo. 452; Stocker v. Green, 94 Mo. 280; Fairbanks v. Long, 91 Mo. 628; Fulkerson v. Mitchell, 82 Mo. 13.

Turner, Hinton & Turner for respondent.

(1) The mere fact that more than ten years had elapsed since the execution of the deed of trust, or even for that matter that the debt secured by it was barred by the statute of limitations, constituted no defense to the action to foreclose. Chouteau v. Burlando, 20 Mo. 482; Cape Girardeau v. Harbison, 58 Mo. 90; Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 49; Gardner v. Terry, 99 Mo. 523; Benton Co. v. Czarlinsky, 101 Mo. 275; Orr v. Rode, 101 Mo. 387; St. Louis v. Priest, 103 Mo. 652; Combs v. Goldworthy, 109 Mo. 151; Chouteau v. Riddle, 110 Mo. 366; Tucker v. Wells, 111 Mo. 399. (2) No error was committed in excluding the evidence offered by the defendant on the subject of the so-called adverse possession. Orr v. Rode, 101 Mo. 387; Murphy v. DeFrance, 105 Mo. 53; Nelson v. Brodhack, 44 Mo. 596; Campbell v. Gas. Co., 84 Mo. 352; Utassy v. Giedinghagen, 132 Mo. 53.

Barclay, P. J. Macfarlane, Robinson and Brace, JJ., concur.

OPINION

Barclay, P. J.

This action was begun April 19, 1895. The plaintiff is J. M. Little. The defendants are Jas. 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 twelve months after date, with interest at eight 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 ninety 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 Jas. 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 18th, 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 everyone, 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 circuit court.

The only question we shall touch at this time is whether or not this court has jurisdiction of this appeal. Counsel appear entirely willing to have the merits considered here. But it is part of our duty to observe the limitations on our authority, and hence to examine into the question just stated. McGregor v. Pollard (1895) 130 Mo. 334 (32 S.W. 640).

We discern no ground on which jurisdiction over this case can be maintained by this court. The only class of cases belonging here that might possibly be suggested as including the case at bar is the class "involving title to real estate." Const. 1875, art. 6, sec. 12. But it has been often declared that title is not involved in a mere suit to foreclose a...