Howard v. Brown

• Decision Date: 19 June 1906
• Citation: 95 S.W. 195,197 Mo. 52
• Parties: WILLIAM A. HOWARD, Appellant, v. HENRY P. P. BROWN
• Court: Missouri Supreme Court

95 S.W. 195

197 Mo. 52

WILLIAM A. HOWARD, Appellant, v. HENRY P. P. BROWN

Supreme Court of Missouri, Division One

June 19, 1906

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Reversed and remanded (with directions).

Grant S. Watkins and W. B. Rusk for appellant.

W. H Haynes for respondent.

OPINION

VALLIANT, J.

This is a suit of the same nature, between the same parties and resting on the same facts as in the case of Howard v. Brown just decided, and reported at page 36 of this volume, except that the subject of this suit is lots 5, 6 and 7 of block 1 of Landis & Hull's Addition to the city of St. Joseph, which are the lots referred to in the contract Exhibit A, as having been sold by the administrator to Shoup, and except also that the plaintiff derives title to these lots through a deed of trust in which Parmelia Brown was one of the grantors to secure a note of $ 1060 to one Hoagland and a deed from the trustee to plaintiff foreclosing that deed of trust. This cause was tried in another division of the Buchanan Circuit Court from that in which the other suit was tried and before another judge. The decree in this case was that the defendant was entitled to one-eleventh interest in the land and one-fifth interest in whatever surplus there might be in the proceeds of the sale of the property when disposed of under the terms of the contract Exhibit A, and ordered that the cause be referred to a referee to state an account between the parties to ascertain if there was a surplus and how much. From that decree the plaintiff appealed. Respondent moves the court now to dismiss the appeal because there was no final judgment.

We have already held in the other case following Seidel v. Cornwell, 166 Mo. 51, 65 S.W. 971, that the only subject of jurisdiction under the statute to quiet title, section 650, Revised Statutes 1899, was the title to the land in question, that the accounting between the parties growing out of the performance of the contract Exhibit A was beyond the scope of the jurisdiction of the court in this case; it therefore follows that when the court entered a decree adjudging that the defendant held title to an undivided one-eleventh of the land, leaving the plaintiff ten-elevenths and giving judgment for defendant for costs, it exhausted its jurisdiction and the further order looking to a reference and an accounting was a nullity.

The decree declaring the title to one-eleventh in the defendant was a final decree from which the plaintiff had a right to appeal. The motion to dismiss is therefore...