Albi v. Reed

• Decision Date: 12 September 1955
• Docket Number: No. 44422,No. 2,44422,2
• Citation: 281 S.W.2d 882
• Parties: Frank ALBI and Marletta Lupee Albi, Respondents, v. Nannie R. REED, Appellant
• Court: Missouri Supreme Court

Page 882

281 S.W.2d 882

Frank ALBI and Marletta Lupee Albi, Respondents, v. Nannie R. REED, Appellant.

No. 44422.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1955.

O. J. Adams, Hamilton, J. M. Loomis, Kansas City, for appellant.

Geo. W. Meyer, David W. Barry, Meyer, Smith, Wetzel & Barry, Kansas City, for respondents.

BARRETT, Commissioner.

The parties to this action are Mrs. Nannie Reed, a widow now past eighty years of age, and Mr. Frank Albi, a naturalized Italian seventy years of age. Mr. Albi has been employed by the Kansas City Terminal Railroad for more than forty-five years. Mrs. Reed and Mr. and Mrs. Albi are neighbors and own adjoining properties. In 1925 Mrs. Reed and her husband purchased the property known as 3517 Morrell and in 1943 the Albis purchased 3519 Morrell. When the Reeds purchased and moved into 3517 Morrell there was a fence between their property and the adjoining property, 3519 Morrell, now owned by the Albis. The fence remained there until 1950 when Mrs. Reed, after a survey, took the existing fence down and built a new fence east of the old one, despite the warnings and protests of Mr. Albi and his lawyer. Upon the removal of the old fence and the building of the newly located one Mr. and Mrs. Albi instituted this action against Mrs. Reed. Upon the trial of the case the court found all the issues in favor of the plaintiffs, Mr. and Mrs. Albi, and Mrs. Reed has appealed the cause to this court. Among other things the court enjoined Mrs. Reed from maintaining the newly constructed fence, the court found that her removal of the old fence and the building of the new was wilful and awarded Mr. and Mrs. Albi $75 actual damages and $225 punitive damages.

The first and obvious question is this court's jurisdiction, the determination of which is, in a measure, determinative of the appeal on its merits. The parties are not in agreement as to the kind or type of action involved, the appellant says that the action is in ejectment while the respondents say, simply, that it is a suit in equity. The action as originally filed was in two counts, the counts are not separately denominated but the petition is captioned 'Petition In Equity For An Injunction And For Trespass And Damages And To Quiet Title.' In the first count the petition sets forth the ownership and detailed legal discription of the Albis' property, the fact of the boundary line fence and the claim of adverse possession by them and their predecessors in title of all the land up to the fence and, consequently, their title to the lot up to the old fence. In that count the fact of Mrs. Reed's ownership of the adjoining property is stated, her wilful and wanton entry upon their property, her removal of the old fence and the construction of the new one are alleged. In that count of the petition the plaintiffs asked for an injunction and actual and punitive damages. The second count alleged that Mrs. Reed claimed some interest in the described property and the court was asked to try, ascertain and determine the estate, title and interest of the parties. Mrs. Reed's answer was in effect a general denial. At the conclusion of the case the plaintiffs dismissed, so the judgment and decree recite, the second count of their petition. In its findings the court found the Albis' ownership of their described lot and fifteen years' adverse possession by them and their predecessors of a second described tract (the area between the old and the new fence) and consequently title to that strip by adverse possession. In addition, the court found the boundary line to be the old fence and that the new fence encroached upon the plaintiffs' land. The judgment, in addition to awarding damages and an injunction and despite the dismissal of the second count, recites, 'It Is Therefore Ordered, Adjudged and Decreed by the Court that plaintiffs are vested with the fee simple title in and to that portion of the real estate described in their petition and hereinabove referred to as Tract I and Tract II; and It Is Further Ordered, Adjudged and Decreed and Found that defendant, Nannie R. Reed and her unknown heirs, consorts, grantees and successors have no right, title, claim or interest in the above described Tracts I and II.'

The form of the action is not determinative of this court's jurisdiction, Bussen v. Del Commune, Mo., 195 S.W.2d 666, the important and determinative factor is that title to real estate must be in issue and the judgment sought or rendered must affect or operate upon the title, that is determine title in some measure or degree adversely to one litigant and in favor of another. Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 2 S.W.2d 771, 773. If the action is in ejectment and the court makes a general finding for one of the parties and an adjudication of title is not in fact sought but is ascertained for the purpose of entering the appropriate judgment for possession, title to real estate is but incidentally or collaterally involved and the case does not involve the title to real estate so as to confer exclusive appellate jurisdiction upon this court. Const. Art. 5, Sec. 3, V.A.M.S.; Townsend v. Lawrence, Mo., 262 S.W.2d 55; Motchar v. Hollingsworth, Mo., 162 S.W.2d 805; Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882. Likewise, generally, if the action is in equity and an injunction is sought to protect an easement or to compel the removal of a dam or a fence, the court in finding the prescriptive right does so but incidentally to the granting of the relief sought and title to real estate is not involved in the jurisdictional sense. Winslow v. Sauerwein, Mo.App., 272 S.W.2d 836; Judge v. Durham, Mo., 274 S.W.2d 247; Gibson v. Sharp, Mo., 270 S.W.2d 721. But in this case, whatever the form of the action, the court not only found the fact of title but the court purports in its judgment to adjudicate and determine title in no uncertain terms and even though the judgment in that respect was not warranted for appellate, jurisdictional purposes the case involves the title to real estate and jurisdiction of the appeal is appropriately in this court. Riley v. La Font, Mo., 174 S.W.2d 857; State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544.

The appellant, Mrs. Reed, contends however, since neither party asked for a determination of title, that the judgment is void in so far as it adjudicates the title to real estate. Riley v. La Font, supra. The respondents contend that the parties expressly or impliedly tried title, and in any event, title being within the proof and having been adjudicated their failure to amend the pleadings to conform to the proof 'does not affect the result of the trial of these issues.' Section 509.500 RSMo 1949 V.A.M.S. Under this statute it has been held proper in a quiet title suit, where the plaintiff claimed to be the owner in fee simple of a strip of ground by adverse possession, for the court, in conformity with the proof, to decree an easement in a part of the strip. Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26. It is not necessary to say whether the statute is broad enough to cover this case in which the plaintiffs have dismissed the count to quiet title, thereby repelling the inference that title was expressly or tacitly tried. Neither is it necessary to say whether their failure to amend to conform to the proof affects the result of the issues in fact decreed. Here, upon the court's refusal to grant Mrs. Reed a continuance, her counsel refused to participate in the trial of the case and it may not be said that she either expressly or tacitly tried any issue. But in this connection the decisive factor in this case is that while Mr. and Mrs. Albi may have incidentally shown and tried title that was not their principal purpose--the central theme of all the proof was the location of the boundary line between the two properties.

It may have been possible from the record and a plat relied upon by the plaintiffs for the court to have found title and to have entered a judgment so legally describing a strip of ground as to permit...