Davis v. Watson

• Citation: 59 S.W. 65,158 Mo. 192
• Parties: DAVIS et al. v. WATSON.
• Decision Date: 12 November 1900
• Court: United States State Supreme Court of Missouri

59 S.W. 65

158 Mo. 192

DAVIS et al. v. WATSON.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

COURTS — JURISDICTION — ACTIONS FOR DAMAGES — SUITS AFFECTING TITLE TO REALTY.

Const. art. 6, § 12, provides that appeals shall lie direct to the supreme court in cases involving the title to real estate. Defendant purchased a right of way over plaintiffs' land for railroad purposes, and built a switch across the land under the contract. Plaintiffs sued for damages on failure to pay the contract price, and tendered a conveyance of the right of way into court, to be delivered on payment of the price. Held that, though the title to the land is incidentally involved, the supreme court has no jurisdiction.

Appeal from circuit court, Macon county.

Action for damages for breach of contract by Margaret Davis and others against William S. Watson. From a judgment in favor of plaintiffs, defendant appeals. Remanded to the court of appeals.

Dysart & Mitchell and Ben Eli Guthrie, for appellant. W. H. Sears and Daniel R. Hughes, for respondents.

ROBINSON, J.

Plaintiffs, for their cause of action, filed the following petition: "(1) Plaintiffs, by their attorneys, state that they are husband and wife, and for their cause of action against defendant allege that on the 14th day of November, 1890, a certain agreement was made and entered into by and between the plaintiffs and the defendant in words and figures following, to wit: `Bevier, Mo., Nov. 14, 1890. This agreement certifies that Wesley H. Loomis and Wm. S. Watson have this day purchased from James W. Davis and Margaret Davis, his wife, for one thousand (1,000.00) dollars, the exclusive right of way for any railroad or switch or railroad purposes over his farm of eighty acres. If we build a switch, we will occupy only seventy feet in width up the ravine, namely, the south half of the southwest quarter of section fifteen (15), township fifty-seven (57), range fifteen (15), together with the privilege of purchasing his farm named above for four thousand (4,000) dollars at any time prior to March 1st, 1891; that is, $3,000.00 in addition to the $1,000.00 for the exclusive right of way. In consideration of the above agreement all parties have signed their names hereto, and the receipt of ten dollars ($10.00) earnest money is hereby acknowledged by James W. Davis. James W. Davis. Wesley H. Loomis. W. S. Watson. Margaret Davis. Witness: Jno. H. Gay, Notary Public. [Seal.]' (2) Plaintiffs allege that they have duly performed all the conditions of said contract on their part to be performed; that they have at all times been ready and willing to make a conveyance of the exclusive right of way over their land mentioned in the above contract; and that they now tender into court a deed for said right of way, to be delivered to the defendant upon payment by him of the consideration named therein. (3) The plaintiffs further state that the defendant has caused to be built, and is now using, a railroad switch over the land and along the line described in the contract; and that he has wholly failed, refused, and neglected, and still fails, refuses, and neglects, to pay the plaintiffs the balance due on said contract, to wit, the sum of nine hundred and ninety dollars ($990.00). Wherefore plaintiffs say that by reason of the premises they are damaged in the sum of nine hundred and ninety dollars ($990.00), for which they pray judgment, together with interest from November 14, 1900, and costs of this suit." In defendant's answer thereto 12 assignments are pleaded as reasons why plaintiffs' action should not be maintained, among which is one to the effect that plaintiffs, at...