Dunn v. Miller

• Decision Date: 02 June 1885
• Citation: 18 Mo.App. 136
• Parties: JOHN A. DUNN, Appellant, v. KATE C. MILLER ET AL., Respondents.
• Court: Missouri Court of Appeals

18 Mo.App. 136

JOHN A. DUNN, Appellant,

v.KATE C. MILLER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 2, 1885.

Transferred to the supreme court.

A. R. TAYLOR, for the appellant.

HITCHCOCK, MADILL & FINKELNBURG, for the respondents.

LEWIS, P. J., delivered the opinion of the court on motion to set aside order of transfer to supreme court.

Respondent, Kate C. Miller, files a motion to set aside so much of the order entered on May 19, 1885, as directs the transfer of this cause to the supreme court under an act of the general assembly, approved March 4, 1885, for the reason, as alleged, that the cause is not one within the final appellate jurisdiction of the supreme court. The question thus revived was carefully considered before the making of the order. But counsel whose opinions are entitled to great weight so earnestly press upon us their conviction of the impropriety of our classification in this particular case, that we here present some of the reasons which, as we think, sustain it.

In determining the question whether this is a case “involving title to real estate,” within the meaning of article VI., section 12, of the state constitution, it seems only necessary to discriminate between cases which clearly belong to that class, and controversies which relate merely to the conveyance of realty from one party to another. In a suit to enforce specific performance of a contract for the purchase or sale of land, the final adjudication settles nothing as to the positive title. That, so far as the whole controversy is concerned, may reside in a third party, or may have never emanated from the government. The only controversy is over a question of personal duty in the execution or acceptance of a deed from one party to the other. Such a case is therefore not one “involving title to real estate.” It is like many others in which, although the final judgment may have a controlling influence on a transmission of the title, yet does not adjudicate the title itself.

Title in the sense of the constitutional provision, implies absolute ownership against all the world. In this state, it is derived from the primary proprietary through: “First, an entry of bounty land warrant location with the register or receiver of any land office of the United States, or with the commissioner of the general land office thereof; or, second, an entry with the register and receiver of any land office in this state; or, third, a pre-emption right under the laws of the United States, or of this state; or, fourth, a New Madrid location * * *” (Rev. Stat., sect. 2241). If the final judgment in a case will determine who is the representative and holder of the rights transmissible from one of these primary sources, such a case is one “involving title to real...