Curators of Central College v. Shields

• Decision Date: 02 October 1944
• Docket Number: No. 20422.,20422.
• Citation: 182 S.W.2d 792
• Parties: CURATORS OF CENTRAL COLLEGE v. SHIELDS et al.
• Court: Missouri Court of Appeals

182 S.W.2d 792

CURATORS OF CENTRAL COLLEGE v. SHIELDS et al.

No. 20422.

Kansas City Court of Appeals. Missouri.

October 2, 1944.

Appeal from Circuit Court, Howard County; A. R. Hamet, Judge.

"Not to be published in State Reports."

Action involving title to real estate by the Curators of the Central College against B. L. Shields and another. From an adverse decree, the named defendant appeals.

Appeal transferred to the Supreme Court.

Roy D. Williams, of Boonville, for appellant.

Luman Spry and F. A. Culmer, both of Fayette, for respondent.

DEW, Judge.

This is an appeal from a decree of the Circuit Court finding the title to certain real estate in Howard County, Missouri, to be vested in the respondent, together with the right to immediate, exclusive possession thereof, and that the appellant Bernard L. Shields and the remaining defendant City of Fayette have no interest in and to the said land. The exact nature of this action is itself an issue in this appeal and is determinative of our jurisdiction. The evidence is not herein set forth, as we believe a consideration of the pleadings and decree discloses our lack of jurisdiction over the subject-matter.

Respondent and appellant were respectively plaintiff and defendant below and will be so referred to herein.

Defendant classifies the action as one for the closing of a city street, and maintains that the title to the real estate is only incidentally involved. Plaintiff denominates the action as one to quiet title, but does not mention or brief the question of our jurisdiction. It is, of course, the duty of the court to concern itself with its jurisdiction, whether or not that issue is raised by the parties. Electric Secret Service Co. et al. v. Gill-Alexander Electric Mfg. Co. et al., 125 Mo. 140, 28 S.W. 486.

Jurisdiction in appellate cases involving title to real estate is vested exclusively in the Supreme Court of Missouri under Article VI, Section 12 of our state Constitution, Mo. R.S.A. When and under what conditions a case involves the title to real estate in the constitutional sense is fully discussed and clearly outlined, and the method of determining the same, in Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 2 S.W.2d 771. As ruled in that case, it is necessary, in order to determine whether or not title to real estate is involved in a given case in the sense used in the constitutional provision referred to, to examine the petition, the judgment sought, the subsequent pleadings and the judgment rendered. We, therefore, consider the same in the instant case. If such sources show on their face that our jurisdiction is lacking, an examination of the evidence is not necessary.

The petition states two counts. The substance of the first count is that the plaintiff claims to be in possession and lawfully entitled to the tract in question; that for more than ten years after June 3, 1919, and for more than ten years before November 26, 1941, plaintiff has been in open, notorious, exclusive, adverse and hostile possession of said described land, claiming as owner thereof; that the defendants claim some right, title, or interest therein; that neither defendants, nor anyone under whom they claim, on June 3, 1919, or for more than ten years thereafter were in possession of said tract, nor for more than ten years prior to November 26, 1941, have defendants ever paid any taxes thereon, nor were same paid by anyone under whom they claim, nor have they brought any action during such periods to recover said property, and that the title thereto has become vested in plaintiff by limitation under Sections 1002-1005, Revised Statutes of Missouri, 1939, Mo.R.S.A.; that the defendants have become barred as to any right, title, or interest in said tract.

The prayer of said first count is as follows:

"Wherefore, plaintiff prays the court to try, ascertain and determine the estates, title and interests of plaintiff and defendants of, in and to the real estate hereinbefore described, by its decree to adjudge, determine, settle, quiet and find the respective rights, titles, interests, and estates of plaintiff and defendants to said real property; plaintiff further prays that if the court finds that it is the sole owner of the real estate hereinbefore described, that an order and decree be entered of record forever barring and precluding the defendants, and each of them, as well as all persons claiming by, through or under said defendants from hereafter setting up any title or claim to said property, and for all other proper orders and relief in the premises."

The second count of the petition alleges that the plaintiff is in the possession of and lawfully entitled to certain real estate (same as described in Count I) located in Howard County, Missouri; that a certain purported quit-claim deed was made May 8, 1916, attempting to convey said strip of land from the plaintiff to the city of Fayette, Missouri; that said deed is null and void and is a cloud on plaintiff's title for the reason that it was not attested and was not stamped with the corporate seal of the plaintiff, a corporation, as required by Section 2790, Revised Statutes of Missouri, 1909, Mo.R.S.A. § 3404.

Said second count further avers, in substance, that one R. N. Chancellor and his wife filed a plat of what was called "Chancellor Addition" to the city of Fayette, recorded June 5, 1916, in the Howard County plat book; that said plat included the above described strip of land, together with land in said plat owned by the said Chancellor; that said Chancellor and wife wrongfully claimed by said plat to be the owners of the tract in question, whereas they had in fact no right, title, or interest therein; that on June 4, 1916, plaintiff was the owner in fee simple thereof, and had been the owner thereof under deed since August 23, 1911; that the claim of ownership by said Chancellor of said tract is not true and is a cloud on plaintiff's title. The second count further states, in effect, that on June 1, 1929, said Chancellor and wife gave to defendant B. L. Shields and R. B. Shields their Deed of Trust on "Chancellor's Addition", excepting the above described strip of land in question; that on November 26, 1941, said Deed of Trust was foreclosed and said defendant B. L. Shields became the purchaser at such foreclosure, and received trustee's deed thereto; that said trustee's deed was filed of record in said county, whereby plaintiff states that it believes the said Bernard L. Shields claims some right of ingress and egress over the strip of land in question to the said Chancellor's Addition, and believes that said Bernard L. Shields claims said strip is a roadway belonging to the defendant city of Fayette, and never vacated by the city of Fayette.

It is further alleged in said second count that Bernard L. Shields has ingress and egress from his said land by other ways to the public streets in the city of Fayette; that the said strip in question is not an established roadway; that it belongs to the plaintiff in fee simple, and has been in its possession since August 23, 1911; that plaintiff has exercised owner's rights over the same, such as cutting weeds, repairing it for its own private road to connect with its athletic field adjoining thereto, permitting people to travel over the same to ball games, and preventing trespassers going over the same at all times.

It is further alleged in the second count that the city of Fayette never has asserted any claim to said strip of land by word or act, and that said city defaulted in a certain suit against it at the January Term in 1942, which suit was dismissed without prejudice by this plaintiff, brought to establish and quiet title, naming said city as defendant; and the plaintiff further alleged that said city attempted to show by ordinance on September 2, 1941, that it did not claim any right, title, or interest in the strip of land in question; whereby, the plaintiff states, Bernard L. Shields has no right, title, or interest in the strip of land in question, and that should he have such claim it would constitute a cloud upon plaintiff's title thereto.

In the prayer of the second count plaintiff prays the court to try, ascertain, and determine the estates, title, and interests of plaintiffs and defendants of, and to the real estate in question and by its decree to adjudge, determine, settle, quiet and define the respective rights, titles, interests, and estates of plaintiffs and defendants to said real estate; and if the court should find plaintiff to be the sole owner thereof, and that the purported quit-claim deed of May 8, 1916, is null and void for the reasons stated and conveyed nothing, and find that the same is a cloud on plaintiff's title, that an order, judgment, and decree be entered settling and quieting the title to said tract and setting aside said purported quit-claim deed to the city of Fayette, and declaring said city to be divested of all title thereto.

The prayer of the said second count further asked that if the court find that the claim of ownership of said R. N. Chancellor and wife in their said plat, asserting title to the above described strip of real estate is not true as made by them on June 5, 1916, and finds the same to be a cloud on plaintiff's title thereto, that a judgment and decree be entered settling and quieting title to said real estate, and that said claim of ownership be held for nought and declared null and void. It was further prayed that if the court finds Bernard L. Shields, by virtue of the trustee's deed to land in said "Chancellor's Addition" has no right to ingress and egress over the land in question, and that the same is not an established roadway, and that the same belongs to plaintiff by direct conveyance and by continuous, adverse possession, that a decree be entered declaring said Bernard L. Shields to have no right, title, or interest in the said tract, and barring both defendants forever, and...