McGregor v. Pollard

• Decision Date: 07 November 1895
• Citation: 32 S.W. 640,130 Mo. 332
• Parties: McGREGOR v. POLLARD.
• Court: Missouri Supreme Court

32 S.W. 640

130 Mo. 332

McGREGOR v. POLLARD.

Supreme Court of Missouri, Division No. 1.

November 7, 1895.

APPELLATE COURTS — JURISDICTION — AMOUNT INVOLVED — TITLE TO REAL ESTATE.

1. The amount of plaintiff's judgment, not the amount demanded in his petition, determines the jurisdiction of the appellate court, the judgment being complained of by defendant alone.

2. An action seeking merely to charge a part of plaintiff's demand on defendant's land does not involve title to real estate, within the provision as to appellate jurisdiction.

Error from circuit court, Lincoln county; E. M. Hughes, Judge.

Action by Josephine McGregor, administratrix, against James H. Pollard. Judgment for

plaintiff. Defendant brings error. Transferred to court of appeals.

R. H. Norton and Morton Jourdan, for plaintiff in error. Chas. Martin and T. F. McDearmon, for defendant in error.

BRACE, C. J.

It appears from the evidence in this case: That in a proceeding in partition in the circuit court of St. Charles county between the heirs of Matthew N. Clay, deceased, there was set off to his daughter Nancy J. certain lands in said county in the commissioners' report made to said court on the 24th of September, 1872, as her share as one of the heirs at law of her said father. That afterwards, in 1876, the said Nancy J. intermarried with the defendant, James H. Pollard. That afterwards, to wit, on the 27th day of July, 1878, the said James H. Pollard and his wife, the said Nancy J., by warranty deed, duly executed, conveyed said lands to one Peter Rummert for the consideration of $3,300, $1,000 of which was paid in cash, and for the remainder the said Rummert executed his promissory note of that date for the sum of $2,300, payable to the order of the said James Pollard within two years after date, with interest from March 1, 1879; and on the same day the said Rummert and wife, parties of the first part, conveyed said lands by deed of trust to H. S. Clay, party of the second part, to secure the payment of the said promissory note to the said James Pollard, party of the third part. That afterwards, to wit, in August, 1887, the said Nancy J. died, intestate, without lineal descendants; and on the 5th day of March, 1888, letters of administration on her estate were granted to her sister, the plaintiff, Josephine McGregor, who, as such, on the 17th day of March, thereafter, instituted this suit, charging in her petition "that the whole of the proceeds of the sale of said lands so belonging to the said Nancy J. Pollard in her own right as aforesaid was received by the said respondent, James H. Pollard, and, without the written consent of the said Nancy J. Pollard, was by him converted and appropriated to his own use and benefit, and never accounted for or paid to the said Nancy J. Pollard or any one else"; that, of the moneys so converted, he used the sum of $1,500 in paying off certain mortgages or deeds of trust which were liens upon land owned by the defendant and described in the petition, and that he used the further sum of $1,000 in making improvements on said lands; and prayed for judgment for the amount of the proceeds of said...