Bailey v. Winn

• Decision Date: 22 December 1892
• Citation: 20 S.W. 21,113 Mo. 155
• Parties: Bailey v. Winn et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 21

113 Mo. 155

Bailey v. Winn et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1892

Appeal from Macon Circuit Court.--Hon. Andrew Ellison, Judge.

Affirmed.

Dysart & Mitchell for appellants.

(1) The court of common pleas at New Cambria had no legal existence and its judgments and proceedings thereunder were utterly void, unless it can be construed to be a court inferior to the circuit court. Session Acts, 1874, page 256; Constitution of 1865, art. 6, secs. 1, 13; State v. Daniels, 66 Mo. 192; State ex rel. v. County Court, 50 Mo. 317; 1 Bouvier's Law Dictionary [14 Ed.] 769. The court of common pleas was made co-ordinate with the circuit court in all respects and is not an inferior court. (2) It affirmatively appears in this record that no transcript or abstract of the judgment was filed in the circuit court there is no authority in the act of 1874 for an execution to issue until after the filing of the transcript in the circuit court. (3) The land in question was sold by Sparrow to Souther between the date of the judgment and suing out of the writ of error. A writ of possession or of restitution could not issue against Souther, even if the judgment had been rendered and entered for plaintiff in this court on the writ of error. The writ of error was the commencement of a new suit. Maclin v. Allenberg, 100 Mo. 337; Pierce v. Stinde, 11 Mo.App. 364; McCormick v McClure, 6 Blackf. 466; Taylor v. Boyd, 3 Ohio 338; see also authorities cited in Maclin v. Allenberg, and Pierce v. Stinde, supra. (4) That Souther was an innocent purchaser is not called in question by this record. He purchased on the faith of his vendor's decree.

Ben Eli Guthrie and J. L. Berry for respondents.

(1) The Act of March, 1874, creating the court of common pleas was constitutional. A court of limited jurisdiction is inferior to a court of general jurisdiction. State v. Daniels, 66 Mo. 192; 1 Bouvier's Law Dictionary [14 Ed.] p. 769. (2) The title to real estate was not involved in the case of Edwards v. Edwards in the court of common pleas. The title can only be said to be involved when it is the subject-matter of litigation and not such as only affects or involves some interest in real property. Robertson v. Railroad, 18 Mo.App. 185; Morse v. Franklin, 79 Mo. 518; Baier v. Berberich, 77 Mo. 413. (3) The execution properly issued from the court of common pleas. Bailey v. Winn, 101 Mo. 649. (4) The wards of Sparrow stand in the shoes of their deceased father. They do not occupy the position of innocent purchaser without notice. Their mother had no interest in the land to convey and they took nothing by her deed. Waller v. Mardus, 29 Mo. 25; Warsham v. Callison, 49 Mo. 206; Bailey v. Winn, 101 Mo. 649. The judgment should be affirmed. Bailey v. Winn, 101 Mo. supra.

OPINION

Black, J.

This is an action of ejectment to recover one hundred and twenty acres of land in Macon county, the same being part of school section 16. There was a judgment for the defendants on the first trial, which was reversed and the cause remanded by this court on a writ of error sued out by the plaintiff. 101 Mo. 649, 12 S.W. 1045. The second trial resulted in a judgment for the plaintiff, and to reverse that judgment the defendants perfected the present appeal. The case, when here before, was complicated by reason of a number of titles put in evidence by the plaintiff. The present contest turns upon the validity of one of these titles, and the facts will be stated so far only as they bear upon this issue.

The three forty-acre tracts, constituting the one hundred and twenty acres in the suit, were sold by the county court under the law relating to school lands, and the purchasers paid the purchase price, but they did not obtain patents from the state. This equitable title thus acquired was vested in one Andrew Agee by various mesne conveyances. Agee conveyed the land to Edward Edwards by a deed dated the eighteenth of June, 1870. Edward Edwards died in possession of the land in 1877, leaving a widow and two minor children. The widow married in 1879, and she and her husband conveyed her interest, whatever it was, to the two minor children by a deed dated the third of April, 1880. These minor heirs defend this suit by their curator, James D. Sparrow.

The plaintiff put in evidence a patent from the state to Edward A. Edwards for the land, dated the twenty-fifth of June 1884, and a deed from him to plaintiff Bailey. We held, when the case was here before, that Edward A. Edwards acquired this legal title subject to whatever equitable rights, if any, Edward Edwards had in the land, and that the plaintiff occupied the same position. The question now is, whether Edward A. Edwards acquired the equitable title of Edward Edwards, or whether that title rests in the minor heirs of Edward Edwards. To show that Edward A. Edwards acquired this equitable title, the plaintiff put in evidence a sheriff's deed to Edward A. Edwards, dated the fifteenth of July, 1875, based upon a sale made under a judgment of the Macon county court of common pleas, in favor of David W. Edwards and against Edward Edwards. The judgment was rendered on the twenty-eighth of April, 1875, and the execution issued out of the common pleas court.

1. A number of objections are made by the defendants to the sheriff's deed, and the first is that the act of March 2, 1874 (Acts of 1874, p. 256), creating the Macon county court of common pleas is unconstitutional and void, because the common pleas court thus established is not an "inferior tribunal" to the circuit court.

Section 1 of article 6 of the constitution of 1865, as amended in 1870, declares: "The judicial power, as to matters of law and equity, shall be vested in a supreme court, in circuit courts, and in such inferior tribunals as the general assembly may, from time to time, establish."

The distinction between superior and inferior courts is not clearly defined. When different courts are compared, it is generally said those courts are inferior "which are subordinate to other courts; also, those of a very limited jurisdiction." Bouvier's Law Dictionary, Title, Courts; 4 American & English Encyclopedia of Law, 453. The test of inferiority may be solved by showing that the court is either placed under the supervisory or appellate control of other courts, or that the jurisdiction as to the subsequent matter is limited and confined. State v. Daniels, 66 Mo. 192. Applying these tests there can be no doubt but this common pleas court is a tribunal inferior to the circuit court. It has no jurisdiction in criminal matters, nor in those civil actions in which the title to real estate is involved. Again, it is subject to the superintending control of the circuit court, not by way of appeal, but by the writs of prohibition and mandamus.

The act creating this court provides that appeals and writs of error may be allowed and prosecuted to the supreme court. But want of appellate jurisdiction in the circuit court is not the sole test. The fact that this court is far more limited in its jurisdiction as to subject-matter than the circuit court is sufficient to make it a tribunal inferior to the circuit court within the meaning of the constitution. State v. Daniels, supra, is quite conclusive on this question.

2. The next objection to the sheriff's deed is that it is void because the suit of David W. Edwards against Edward Edwards involved title to real estate, and for this reason the common pleas court had no jurisdiction of that action.

When this case was here before we held that the suit in the common pleas court was simply one to enforce a vendor's lien, and that title to real estate was not involved in it. The pleadings in that case were not then before us; but they were put in evidence on the last trial, and it is now insisted that they disclose different issues from those before considered. The case as disclosed by the findings of the common pleas court and the admissions made by the pleadings is in substance this:

David W. Edwards, the plaintiff in that case, and Edward Edwards, the defendant therein, purchased the land in 1870 from Andrew Agee at the price of $ 1,600. David paid $ 400 and Edward paid $ 600. David executed his note to Agee, due in one year, for $ 600, being the balance of the purchase price, and received from Agee a bond for a deed. In 1871 David directed Agee to convey the property to Edward on payment of the $ 600 note. Edward paid this note and received from Agee a deed, and then gave David his note for $ 400 for David's interest in the land. The court found that there was due from Edward to David on the $ 400 note the sum of $ 498.50, and gave judgment in favor of David enforcing a vendor's lien for that amount, subject to a certain deed of trust placed on the land by Edward.

Turning now to the issues made by the pleadings, we find Edward states in his answer that he and David were the joint purchasers of the land, and were the joint makers of the $ 600 note payable to Agee; that David failed to pay his share of the note and Edward paid the whole of it, in consideration that David abandon all claims to the land and would release to him, Edward. Edward in his answer also denies that he executed the $ 400 note sued upon, and says it was a forgery. David by his reply admits title in Edward by virtue of the deed to him from Agee.

The only real issues in the case were whether Edward executed the $ 400 note, and, if he did, then whether it was given to David for his interest in the land. The case stands now just as it did before. There was no contest as to who had or should have the title. The suit was simply one to foreclose a vendor's lien and nothing more. The act creating the common pleas court gives...