
    [No. 3967.]
    The Hahn’s Peak and Elk River Canal and Placer Mining Co. v. Lees et al.
    Appellate Practice — Jurisdiction of Supreme Court — Real Estate.
    An action to restrain the sale of real estate under a deed of trust does not involve a freehold so as to give the supreme court appellate jurisdiction therein.
    
      Appeal from District Court of Routt County.
    
    Mr. W. E. Sorelle, for appellant.
    Messrs. Rogers, Cuthbert & Ellis, for appellees.
   Chibe Justice Campbell

delivered the opinion of the court.

The object of this action, begun in the district court of Routt county, was to restrain a sale of real estate by a trustee acting under a power contained in a trust deed. From a judgment dismissing the complaint, there was an appeal to the court of appeals, and upon application of appellees, based upon the ground that a freehold was involved, the cause was transferred to this court.

Neither party has raised the question of jurisdiction; but consent of parties cannot confer upon the supreme court appellate jurisdiction. It exists, if at all, solely as the result of the statute. There is only one ground set up in the complaint which, it is claimed, concerns the title of real estate. It is averred that the sale should be enjoined because the statute of limitations had run against the debt for which the trust deed was given as security, and, if the sale takes place, there will be a divestiture of plaintiff’s legal title. Had the action been to foreclose the trust deed, a freehold would not, under repeated decisions of this court, be involved in the sense in which, that term is used in the statute relating to appeals.

The principle is in no wise different under the facts of the pending case. The thing determined by the court below was that the trust deed exists as a lien and might be foreclosed, and the title to the property was not questioned. It is plain that we are without j urisdiction to review this ruling, An order will therefore be entered remanding the cause to the court of appeals.

Remanded.  