Frowein v. Poage
| Decision Date | 29 November 1910 |
| Parties | JOHN A. FROWEIN v. THEODORE F. POAGE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Marion Circuit Court. -- Hon. David H. Eby, Judge.
Reversed and remanded.
W. M Boulware and F. L. Schofield for appellant.
The pleadings made a case of controversy simply and purely as to the legal title to land. The court ruled: (1) That the question which of two claimants of adverse title at law was vested with the true title, could be tried and determined by a proceeding under Sec. 650, R. S. 1899; (2) that under said section said question was required to be tried by the court as in equity, and that defendant was without right under the Constitution and laws of Missouri to have same tried by jury (3) that under said section the court could not only by decree declare the legal title to be in one or the other of the parties litigant, but could declare the title be in neither of them and adjudge it to be in a third person not a party to the suit and not in any manner a claimant. Defendant maintains: First, that the section does not embrace adversary titles; second, if it does by its terms embrace adversary titles at law, then the procedure and trial must be under the dominion of the general practice act, and the parties will have the right to a trial by jury; and, third, if the section embraces a case of adversary legal title, and if by its terms it authorizes or requires a trial by the court without a jury, then and in that case said section, in so far as it makes said requirement or gives such authority, is in conflict with sec. 28, art. 2, of the Constitution of Missouri, and therefore void. (1) Section 650, R. S. 1899 has no application to contests between adverse claimants of lands. R. S. 1855, p. 1241, sec. 62; Grant v. King, 31 Mo. 312; G. S. 1865, p. 662, sec. 53; Webb v. Donaldson, 60 Mo. 394; R. S. 1879, p. 608, sec. 3562; R. S. 1899, sec. 2092; Laws 1897, p. 74; Meriwether v. Love, 167 Mo. 514; R. S. 1899, secs. 647 and 650. (2) "The right of trial by jury as heretofore enjoyed shall remain inviolate." Mo. Constitution, art. 2, sec. 28. While it may be conceded, as it has been repeatedly held, that all limitations on the right which were known and recognized at the time of the adoption of the Constitution were thereby affirmed and made continued limitations on the right, yet nevertheless, the above section by its very terms forbids all restriction of this right to any narrower limits. Accordingly it has been held by this court that while the statute concerning references (sec. 698) in cases involving long accounts, is not in violation of the Constitution, yet upon the other issues involved in such cases and not referred the parties are entitled, under the above provision of the Constitution, to a trial by jury. Tinsley v. Kemery, 170 Mo. 310. And again that, as this statute is in the nature of an exception to the right of trial by jury, it should not be extended by loose construction, and that where the whole case could have been fairly and conveniently tried by a jury a compulsory reference was held error as contrary to constitutional right. Ice Co. v. Tamm, 138 Mo. 385. Of course the above section of the Constitution would exclude jury trials in chancery cases. Ely v. Coontz, 167 Mo. 371. And if section 650 is to be upheld and literally construed and applied in all cases, it enforces trials in all cases in the manner pursued in courts of equity alone. For it is manifest that all the offices and functions of the court, sitting in a proceeding under the statute, are peculiarly and distinctly such as are exercised only by courts of chancery. To "ascertain and determine the estate, title and interest" of parties litigant in real property, and to "define and adjudge by its judgment and decree the title, estate and interest of the parties severally in and to such real property," are matters of exclusive equitable cognizance. Such a proceeding bears no analogy to any suit or action known to courts of law. While our code has abolished the distinction between mere forms of action, and has blended the jurisdiction of our courts of law and equity, the fundamental distinctions of substance between legal and equitable rights have never been overthrown and the principles by which these rights are to be determined yet remain unchanged. Maguire v. Vice, 20 Mo. 429; Richardson v. Means, 22 Mo. 495; Bliss v. Prichard, 67 Mo. 191; Kline v. Vogel, 90 Mo. 249; State ex rel. v. Evans, 176 Mo. 317. The proceeding authorized by this statute is quite analogous to the old bill in equity to quiet title or to remove a cloud, except that it is much broader. Under the old proceeding in such cases a mere equitable right was not sufficient to support the bill; it was requisite that the complaining party should have both legal ownership and actual possession. Orton v. Smith, 18 How. 263; United States v. Wilson, 118 U.S. 86; Frost v. Spitley, 121 U.S. 552. (3) The issues made by the pleadings have always been the test by which to determine whether the action is at law or in equity; and no reason is perceived against the application of the same rule in a proceeding under this statute. Ridgway v. Herbert, 150 Mo. 606; Greyson v. Weddle, 80 Mo. 39; Hardware Co. v. Wolter, 91 Mo. 484; Kortjohn v. Seimers, 29 Mo.App. 271; New Harmony Lodge v. Railroad, 100 Mo.App. 407. (4) The action by plaintiff in this case against the defendant in possession of and claiming legal ownership in the lands in controversy was manifestly and simply, "an action for the recovery of specific real property," and therefore, by the express terms of section 691, "must be tried by a jury unless a jury trial be waived." R. S. 1899, sec. 691; Mfg. Co. v. Milling Co., 79 Mo.App. 156; Major's Heirs v. Rice, 57 Mo. 384. Neither party can be deprived of this right by the interposition of an equitable defense in an action at law. Plow Co. v. Hartman, 84 Mo. 610; Kitchen v. Railroad, 59 Mo. 514; Schuermann v. Ins. Co., 165 Mo. 641; Wolff v. Schaeffer, 4 Mo.App. 367; Rand, McNally & Co. v. Wickham, 60 Mo.App. 44. (5) The fact that the duty of a trial under a statutory proceeding is laid upon the "court," will not be allowed to deprive a party to such a proceeding of his right to a jury trial where the issues present a case entitling the party to such right. Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurston, 130 Mo. 348; Earl v. Hart, 89 Mo. 269; R. S. 1889, sec. 2613; Briggs v. Railroad, 111 Mo. 174.
Reuben F. Roy for respondent.
(1) The abstract does not show that any exception was taken to the action of the trial court in overruling the motions for new trial and in arrest, so that there is nothing before the court but the record proper. State ex rel. v. Sanford, 181 Mo. 134. (2) The position taken by the appellant in the first subdivision of his brief has been ruled against him twice by this court, the court holding that section 647 has been repealed by section 650. Hudson v. Wright, 204 Mo. 412; Meriwether v. Love, 167 Mo. 514. (3) The contention of appellant in the second subdivision of his brief that he was wrongly deprived of a jury trial is met by the fact that the motion in arrest in this cause is not before the court, as it is not shown by the appellant's abstract to be in the bill of exceptions. This court has held that the refusal to permit a jury trial must be raised by motion in arrest, and if not so raised, is lost. The motion in arrest shown in abstract does not even indirectly refer to that point. Vaughn v. Scade, 30 Mo. 600; Naylor v. Chinn, 82 Mo.App. 160; Brown v. Falker, 69 Mo.App. 418; Briggs v. Railroad, 111 Mo. 168; Scott v. Russell, 39 Mo. 409; Cox v. Moss, 53 Mo. 433; Tower v. Moore, 52 Mo. 120; Brown v. Railroad, 37 Mo. 298.
GANTT, P. J. Burgess, J., concurs. Kennish, J., was not a member of the court when the cause was argued and therefore takes no part in the case.
This action was brought under section 650, Revised Statutes 1899.
In substance the petition avers that the plaintiff is the owner in fee of the tract of land, described therein, as an accretion to other lands belonging to him on the west shore or bank of the Mississippi river in Marion county.
The specific tract to which plaintiff asserted title is about fifty acres, the southern boundary thereof being the road embankment from the old bank of said river to the bank or shore line of Goose Island, the northern line thereof being a dike made by the United States Government, the western line being the old bank of the said river and the eastern line thereof being the said Goose Island and the Mississippi river. The petition prayed the court to ascertain and determine the title or estate of plaintiff and defendant respectively in said tract and to adjudge and decree the same. There is no allegation as to the possession of the land.
The answer, after specific denials of the facts alleged in the petition, states that defendant is in the actual possession and occupancy of the east half of said tract, claiming title thereto, and that his title therein and possession thereof cannot be litigated or adjudicated in this proceeding.
Defendant further states that he is the owner in fee of Island No. 7 in the Mississippi river, commonly called Goose Island; that the effect of the building of the several dikes and dams therein mentioned by the United States Government was to deflect the waters of the said river running between said Goose Island or Island No. 7 and the Missouri shore, and that part of the bed around and above the head or northern end of said island gradually filled up over the entire extent thereof by the gradual and continuous deposits therein made by the water until said island and shore became connected, and by reason...
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