Little v. Reid

Babclay, P. J. — This action was begun April 19, 1895. The plaintiff is J. M. Little. The defendants [245] 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 [246] 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. Rep. 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 “in [247] volving 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 mortgage. State ex rel. v. Court of Appeals (1877) 67 Mo. 199; Pinneo v. Knox (1881) 100 Ill. 471; Bailey v. Winn (1890) 101 Mo. 649 (12 S. W. Rep. 1045); Barter Pav. Co. v. Hezel (1897) 139 Mo. 228 (39 S. W. Rep. 781). The defenses put forward by defendant in his answer only assert that the foreclosure is barred by the limitation law. The offer of defendant to show adverse title (as against the mortgage) was beyond the issues of the pleadings. The plaintiff objected to entering that foreign field, and the court sustained the objection. The rejected offer can not be properly held to have enlarged the paper issues in the case. The general denial in the answer did not raise an issue of title in a case of this sort. Nor could that issue be projected into the cause at the trial, in the manner attempted, against the protest and objection of the plaintiff. It is true that, in actions of ejectment, title by adverse possession may be shown under a general denial of the allegation of title in plaintiff. That rule must be accepted as settled by a line of decisions in this State. Nelson v. Brodhack (1869) 44 Mo. 596; Bledsoe v. Simms (1873) 53 Mo. 307; Stocker v. Green (1888) 94 Mo. 280 (1888) (7 S. W. Rep. 279). But the proposition established by those decisions gives no sanction to the wide extension of its application sought by the defendant here. Under the answer (of which a part has been above quoted) the deed of trust must be considered admitted. The present right to enforce it is disputed, owing to the lapse of time; but its original effect as a conveyance of the title is plainly conceded. Such is a fair and reasonable interpretation of the answer of the administrator. The other defendants admitted the plaintiff’s entire contention by their default. In that [248] state of the pleadings the offer of proof of an adverse title was clearly irrelevant. It was not admissible under the principles of pleading discussed in the group of precedents last above cited, nor for any reason that has as yet been suggested. In our judgment the Supreme Court has no jurisdiction of this appeal. It is therefore certified to the Kansas City Court of Appeals. Macearlane, Robinson and Brace, JJ., concur.