Mack v. Mack
| Citation | 281 S.W.2d 872 |
| Decision Date | 12 September 1955 |
| Docket Number | No. 2,No. 44532,44532,2 |
| Parties | Harry J. MACK, Appellant, v. Hortense Ann MACK, Respondent |
| Court | United States State Supreme Court of Missouri |
Joseph J. Tomasso, Paul E. Fitzsimmons, St. Louis, for appellant.
K. Neville Ens, St. Louis, for respondent.
BARRETT, Commissioner.
During their marriage, Harry and Hortense Mack became the owners of a lot and five-room bungalow known as 4601 Delor Street. On June 10, 1953, upon her cross bill, Hortense was granted a divorce and the custody of their four children Harriet, age twelve, Milton, age seven, Rosemary, age five, and Ronald, age three. In January 1954 Harry instituted this action to partition the property. By motion and in her answer Hortense asked that the action in partition be dismissed for the reason that the property was impressed with a trust and was, therefore, not subject to partition until she remarried or until the youngest child reached the age of eighteen years. The basis of the defense was that at some stage in the divorce proceedings there was a pre-trial conference in the judge's chambers, the result of which there appeared in the files, perhaps in the clerk's minutes, a 'Memorandum for Clerk.' Wherever it appeared, the memorandum was as follows: The parties, Harry and Hortense, and their attorneys placed their signatures upon the memorandum.
After hearing the parties the trial court entered a decree which recites that 'by reason of said stipulation agree to by plaintiff and defendant in said divorce action, said agreement impressed a trust on said real estate at 4601 Delor St., St. Louis, Mo. until the youngest child of said marriage reaches the age of 18, or until the defendant, Hortense Ann Mack, remarries.' After entering a judgment declaring the property impressed with a trust, the court denied partition and dismissed Harry's petition. Upon this appeal it is claimed, since they were tenants in common, that Harry was entitled as a matter of law to have the property partitioned. It is urged that the court erred in admitting and hearing certain evidence and in impressing a trust upon the property for the reason that the memorandum did not create a trust or justify the court in decreeing a trust. But, in view of the conclusion that this court does not have jurisdiction of the appeal, we are not concerned with the merits of the cause and the questions briefed and argued by the parties.
It is asserted that jurisdiction is in this court by reason of the fact that the case is one 'involving * * * the title to real estate'. Const.Mo. art. 5, Sec. 3, V.A.M.S. It may appear off hand, since the action is in partition and a trust has been declared, that the case is one involving the title to real estate in the constitutional, jurisdictional sense. But the problem is one of jurisdiction and concerns the power of this court to determine the controversy upon appeal initially. Simms v. Simms, Mo., 253 S.W.2d 814. Jurisdiction may not be conferred by consent of the parties and it is the duty of this court to determine the fact, and if the case does not in point of fact involve the title to real estate, the appeal must be transferred to the appropriate court of appeals. State ex rel. and to Use of Northside Church of God, Ava, Mo. v. Church of God, Anderson, Ind., Mo., 243 S.W.2d 308. For an action to involve the title to real estate in the constitutional, jurisdictional sense the judgment sought or rendered must directly affect or operate upon the title. Title must be in issue directly, not collaterally or incidentally, and the judgment must adjudicate a title controversy. 'The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another.' Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 953, 2 S.W.2d 771, 774. Thus the form of the action is not determinative (Devoto v. Devoto, 326 Mo. 511, 31 S.W.2d 805), it is the fact of involving title, and, if the action and judgment do not meet these essential and basic requirements, the appeal is not directly to this court.
The mere fact that the action is in partition does not necessarily mean that there is a title controversy, or that title is even in dispute, as here where it must stand conceded that the parties are tenants in common and the owners in fee simple, before and since the court's decree. Stewart v. Stewart, Mo., 269 S.W.2d 49. If the sole question involved is the mere right to prosecute the action, not the substantive fact of actually partitioning real estate in such a manner as to affect the title to the land, title to real estate is not involved. In this case it has not been decreed that Harry is not entitled to partition in any event, it has been decreed that his right to do so has been postponed until the expiration of the trust. In this respect the case is comparable to the instances in which partition has been denied because contrary to the terms of a will or until the expiration of an option. It was held in all those cases that they did not involve title to real estate and that this court did not have jurisdiction of the appeals. Farmer v. Littlefield, 355 Mo. 243, 195 S.W.2d 657; Kaufmann v. Kaufmann, Mo., 40 S.W.2d 555; Brockman v. St. Louis Union Trust Co., Mo., 38 S.W.2d 1010.
And so it is with respect to the trust, some trust cases involve the title to real...
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