Stark v. Martin

• Decision Date: 29 May 1907
• Citation: 204 Mo. 433,102 S.W. 1089
• Parties: STARK et al. v. MARTIN et al.
• Court: Missouri Supreme Court

102 S.W. 1089

204 Mo. 433

STARK et al. v. MARTIN et al.

Supreme Court of Missouri. Division No. 1.

May 29, 1907.

COURTS — SUPREME COURT — JURISDICTION — CASE INVOLVING TITLE TO REAL ESTATE.

Const. art. 6, § 12, provides that appeals shall lie from decisions of the St. Louis Court of Appeals to the Supreme Court, in cases involving title to real estate. Plaintiff alleged that under a written contract it agreed to furnish an owner of land, whereto defendants subsequently acquired title, certain trees, and that to secure the notes given for the trees plaintiff was to have a lien on the land. The petition sought to have the contract declared a first lien and foreclosed. The title was admitted to be in the defendant; the court being called on to determine the mere priority of liens. Held, that the case was not one involving title to real estate, so as to give the Supreme Court jurisdiction on appeal.

Appeal from Circuit Court, Schuyler County.

Action by C. M. Stark and others against Ed. Martin and others. From the judgment, plaintiffs appeal. Case ordered transferred to Kansas City Court of Appeals.

S. W. Mills, John D. Smoot, and Edward E. Campbell, for appellant. C. C. Fogle and Higbee & Mills, for respondent.

GRAVES, J.

This is an action to have declared and enforced a conceived lien, upon 40 acres of land in Schuyler county, and as a basis therefor the following written instrument is pleaded, viz.: "This indenture made and entered into this 1st day of June, A. D. 1894, by and between Jacob Sommer, Jr. (P. O. Lancaster, Mo., 5 miles N. E. Lancaster, Mo.) of the county of Schuyler and state of Missouri, party of the first part, and Stark Bros.' Nurseries & Orchards Company of Louisiana, county of Pike and state of Missouri, parties of the second part, witnesseth: That the said party of the first part in consideration of the second parties selling and shipping to him in the fall of 1894 or spring of 1895, to Lancaster, Mo., railroad freight charges prepaid, one hundred dollars ($100.00) worth of fruit trees and binds himself, his heirs and assigns, to plant said trees on his farm containing sixty acres, situated in Schuyler county, state of Missouri, and more particularly described as follows: N. E. N. E. sec. (29) twenty-nine; also west half N. W. N. W. section twenty-eight (28), sections 28 and 29, township 67, range 14; boundaries, north John Casteel, east Wm. Enlow, south J. B. Nichols, west James Jones—and to pay to the order of said second parties, their heirs or assigns, as evidenced by his ten promissory notes to be executed by said first party to second parties when the aforesaid trees were shipped. One hundred dollars ($100.00) due and payable as follows: All deferred interest and payments and interest hereinafter particularily specified to date from the first day of December, 1894, one-tenth in one (1) year, one-tenth in two (2) years, one-tenth in three (3) years, one-tenth in four (4) years, one-tenth in five (5) years, one-tenth in six (6) years, one-tenth in seven (7) years, one-tenth in eight (8) years, one-tenth in nine (9) years, one-tenth in ten (10) years, with interest at the rate of six (6) per cent. per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest; to the payment of which sums as the same shall become due the party of the first part binds himself, his heirs, assigns and grantees of and to the aforesaid described lands, the right being reserved to the said party of the first part to pay the full amount remaining unpaid and not yet due, together with accrued interest at any time he may elect within the period of nine (9) years next after date last above written. And the said first party for the purpose of obtaining this credit states that the above real estate is free and clear of incumbrances, and that he claims the same with a perfect title, except mortgage for $700.00. In witness whereof, we have hereunto set our hands this the day and year first above written. Jacob Sommer. [Seal.] Stark Bros. [Seal] Witnessed by J. Chambers." This written instrument was duly acknowledged by Jacob Sommer, Jr., on June 2, 1894, and filed for record in the recorder's office of Schuyler county, June 9, 1894.

The prayer of the petition is as follows: "Wherefore plaintiffs pray that they have special judgment for the sum of $160 and interest from the date of the filing of this petition, and that said judgment be made a first lien on the land last described, to wit, the E. ½ of the N. E. ¼ of the N. E. ¼ of section 29, and the W. ½ of the N. W. ¼ of the N. W. ¼, of section 28, all in township 67, range 14, in Schuyler county, Mo., that all equities of redemption be foreclosed, and that said lien be enforced, and that said real estate, or so much thereof as may be necessary to satisfy said judgment, together with costs of suit, be sold, and that a special scire facias be issued thereupon, and for costs, and for general relief."

The petition charges the delivery of the trees as per the written instrument aforesaid, and the planting of the same upon the land in dispute, and a failure to pay the contract price. The petition further charges that, at the date of the written instrument aforesaid, the land was free and clear of incumbrance, except a mortgage of $500 to H. A. Brinkeman, and a second mortgage to Allen Updyke for $200; that Sommer paid both of these mortgages in full October 16, 1895, and the liens thereby created were satisfied upon the margin of the record of said mortgages; that Sommer died November 1, 1895, but prior thereto, and on September 2, 1895, he and his wife executed a deed of trust covering 40 acres of the land in the contract mentioned to the Phoenix Mutual Life Insurance Company to secure a loan of $350; that in 1897, this deed of trust was foreclosed, and the said 40 acres of land sold to Jacob Gardner for $650; that Gardner afterward conveyed said land to W. N. Enlow and Louis I. Enlow; that they, upon the day of their purchase, executed a deed of trust to the Hill-Dodge Banking Company for $1,075, and also a deed of trust to John C. Mills for $53.75; that the Enlows thereafter conveyed to Ed. Martin. Ed. Martin, John C. Mills, and the Hill-Dodge Banking Company were made defendants.

Defendants Mills and Hill-Dodge Banking Company file their separate answer in these words: "The said defendant, John C. Mills and the Hill-Dodge Banking Company, for their separate answer to plaintiff's petition, deny all allegations therein, except as herein admitted and averred. Further answering, they aver that said Jacob Sommer, Jr., had no interest in the lands in said petition described on June 1, 1894, nor had he any interest therein until October 15, 1895, when he acquired the title thereto in fee; that in contemplation of purchasing said land, and in order to raise the money to pay therefor, said Sommer made a loan of the said Phœnix Mutual Life Insurance Company of $350, on September 2, 1895, and, to secure the payment of his note to said company, said Sommer on said day executed a deed of trust to said company, whereby he granted, bargained, sold, and conveyed said 40 acres of land described in said petition to said Phœnix Mutual Life Insurance Company, to wit, the E. ½ of the N. E. ¼ of N. E. ¼ section 29, and W. ½ of N. W. ¼ of N. W. ¼, of section 28, township 67, range 14, in Schuyler county, Mo., with covenants of warranty, seisin and further assurance of title, with which $350 said Sommer paid the purchase price of said 40 acres of land; that thereafter said deed of trust was duly foreclosed, and said land duly conveyed under the power contained in said deed of trust to said Jacob Gardner on December 15, 1897, and said Gardner afterwards conveyed said land to said W. N. Enlow and Louis I. Enlow at the time stated; that said W. N. Enlow and Louis I. Enlow duly executed deeds of trust to these defendants, respectively, as stated in the petition, to secure the payment of the sums stated, which were for loans made...