Shiner v. Polk

• Decision Date: 08 April 1963
• Docket Number: No. 49518,No. 2,49518,2
• Citation: 366 S.W.2d 449
• Parties: Harry L. SHINER and Myrtle F. Shiner, Respondents, v. Ethel POLK, by her Guardian and Curator, Martha T. Corn, Martha T. Corn, Curator of Ethel Polk, and Arvid Owsley, Sheriff of Jackson County, Missouri, Appellants
• Court: Missouri Supreme Court

Page 449

366 S.W.2d 449

Harry L. SHINER and Myrtle F. Shiner, Respondents, v. Ethel POLK, by her Guardian and Curator, Martha T. Corn Martha T. Corn, Curator of Ethel Polk, and Arvid Owsley, Sheriff of Jackson County Missouri, Appellants.

No. 49518.

Supreme Court of Missouri, Division No. 2.

April 8, 1963.

Ennis, Browne & Martin, Allan R. Browne, Kansas City, for appellants.

Ayers Blocher, Kansas City, for respondent.

EAGER, Presiding Judge.

This suit was filed upon the theory that the holder of a first note and deed of trust had automatically merged that lien into the legal title by taking a warranty deed from the record owners. Plaintiffs were the holders of a second note and deed of trust and, claiming that their second deed of trust thus became a first lien, they sought to enjoin foreclosure of the first. At the trial plaintiff Myrtle F. Shiner (the husband having died after suit was filed) was permitted to amend the petition by interlineation so as to allege an agreement by defendant Polk to cancel her note and deed of trust. The property covered by these liens is a rather dilapidated house on the east side of Kansas City, which is obviously not worth the remaining balance due on the first deed of trust. And the rather sketchy evidence of value so shows.

More specifically, on May 8, 1956, James and Lucy Lee Dodson executed a note for $4,650 and a first deed of trust on the south forty feet of Lots 1 and 2, except that part of Lot 1 on College Avenue, in Block 2, Walnut Grove, a subdivision in Kansas City, Missouri. Those instruments later became the property of Ethel Polk, defendant and appellant herein. She was then approximately 70 years old and was 75 at the time of trial in July 1961. On March 5, 1959, the Dodsons executed a note for $2,000 and a second deed of trust on the property; these later became the property of plaintiffs, apparently in joint ownership. That deed of trust recited that it was 'subject to an existing First Deed of Trust and Note, now of record.' Both the first and second notes were payable in monthly installments. Apparently the payments on Mrs. Polk's note ceased about the middle of 1959, and those on the other note about January 1960. The balance due on the first after the last payment was $3,638.68 plus interest. On February 23, 1960, the Dodsons executed and delivered to Mrs. Polk as grantee a warranty deed to the property, 'Subject to Fist and Second Deeds of Trust and Notes now of record.' This deed was duly recorded, as were the prior deeds of trust. The transcript shows that this transaction was handled for Mrs. Polk by real estate agents who were 'helping' her with this property; one of them prepared the warranty deed and took it to the Dodsons for execution. The record does not show that Mrs. Polk was present at the time, or when she had last talked to the Dodsons. In fact, nothing is shown as to what transpired when the deed was executed and delivered. It is obvious that the note of Mrs. Polk was not surrendered to the Dodsons, for she had possession of it months thereafter. Mrs, Polk admittedly paid the Dodsons $360 at or about the time of the execution of the deed, 'for their interest.' In the fall of 1960 Mrs. Polk requested one of these real estate agents, so he testified, to institute foreclosure on her note. The original trustee named refused to act, and a request was made of the Sheriff. Publication was instituted and run with the sale set for November 4, 1960. On November 2, this suit was instituted and a restraining order was issued on the same day.

We omit recitals of the evidence of certain circumstances and conversations and also concerning a written statement taken from Mrs. Polk, since these bear largely upon the issue of a supposed agreement by Mrs. Polk to cancel her note. In the view we take of the case, a consideration of that evidence will not be necessary. A guardian and curator was appointed for Mrs. Polk by the Probate Court of Jackson County on February 15, 1962, about seven months after the trial. That court then found her to be incompetent. The guardian and curator was later made a party in the present case.

We first look to see what the issues really are. The petition alleges that a sale under foreclosure of the first deed of trust would be void and 'would place a cloud upon the interest of these plaintiffs * * *.' It does not ask for any adjudication of title, nor does it claim title in plaintiffs. Mrs. Polk's title was not questioned, but rather was affirmed; it was alleged, however, that she had subsequently conveyed to one Silvers, who was originally named as a party defendant but never appeared. Plaintiffs, not claiming title, merely sought injunctions, temporary and permanent, an order declaring their deed of trust 'to be a first lien,' and general relief. Defendant Polk filed her answer in which she made certain admissions and denials, alleged that plaintiffs had an adequate remedy at law, supposedly by a quiet title suit, and sought to have the restraining order dissolved and the petition dismissed. She also prayed for damages. Defendant sought no adjudication of the title, since it had not been placed in controversy.

The court entered its decree on March 26, 1962. Therein it found for the plaintiff generally, and also found: that Mrs. Polk had agreed to cancel her note and deed of trust when she 'purchased' the property in February 1960, as a part of the consideration for the deed, but that she had failed to cancel them; that the note of plaintiff was 'now a first lien' upon the real estate. The judgment was that the note secured by the first deed of trust be cancelled, that the second deed of trust was a first lien on the property, that the defendants were perpetually enjoined from foreclosure and that Mrs. Polk's claim for damages was denied. This judgment did not proceed upon any theory of automatic merger by reason of a purchase of the title by the holder of the first lien. After the overruling of a motion 'For Rehearing and New Trial' defendants appealed.

Actually, the sole issue made here was whether, by merger or agreement to cancel, the first lien was eliminated and the second lien became a first. At the trial the contention of an automatic merger seems to have been totally abandoned in view of the outstanding interest represented by the second lien and other considerations indicated in the cases. Scott v. Hill, 330 Mo. 490, 50 S.W.2d 110; Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183; Collins v. Stocking, 98 Mo. 290, 11 S.W. 750; Wilson v. Vanstone, 112 Mo. 315, 20 S.W. 612; Seiberling v. Tipton, 113 Mo. 373, 21 S.W. 4. The issue tried was largely, if not solely, whether Mrs. Polk had agreed to cancel her note and deed of trust when she took the warranty deed. This was directly denied, and more or less directly asserted, but we refrain from commenting on that evidence.

We are met immediately with a question of our jurisdiction. This writer has noted several times that a case might well have been written on the merits with less difficulty than on the jurisdictional question, but this is a court of limited jurisdiction, Art. V, Sec. 3, Constitution of Missouri 1945, V.A.M.S., and we are not privileged to extend our jurisdiction in any respect. The asserted ground of jurisdiction here is that title to real estate is involved.

In order to establish jurisdiction on that ground it is not enough that title may be indirectly affected; a question of title must be directly involved, must be an issue, and the judgment should be one affecting the title in some way....