Nettleton Bank v. Estate of McGauhey

CourtUnited States State Supreme Court of Missouri
Citation2 S.W.2d 771
Decision Date04 February 1928
Docket NumberNo. 26233.,26233.

Sterling P. Reynolds for appellant.

Frank B. Klepper and O.E. Shultz for respondent.


This appeal was transferred to this court by the Kansas City Court of Appeals on the ground that the title to real estate is involved. The case concerns the administration sale of land in the probate court.

In January, 1923, the appellant widow-administratrix filed her petition in the Probate Court of Buchanan County under Section 106, Laws 1921, page 111, for an order to sell realty of the intestate, her deceased husband, subject to homestead rights and existing mortgages, to pay her allowance of $900 for a year's support, and, as we construe it, her $400 absolute allowance, both theretofore made by the court. The deceased left also two minor children, and the homestead rights referred to were vested in her and them. The statute mentioned, Section 106, since its reenactment in 1921, has sanctioned the probate sale of land for the payment of the year's support allowance (it says nothing about the $400 statutory absolute allowance) and provides for the taking of the same steps as in case of the sale of real estate to pay debts.

The respondent Nettleton Bank thereupon filed an intervening pleading setting up that it had an allowed demand against the estate, representing an indebtedness contracted prior to the acquisition of the homestead by the deceased, and asking that in view of its claim the whole title to the land be sold, homestead interest included, for the payment of its debt as well as the widow's allowance. This relief evidently was sought under Section 5857, Revised Statutes 1919, which provides, in substance, that the homestead of a deceased person may be sold by the probate court free of the rights of the widow and children, for the payment of his debts "legally charged thereon during his lifetime." By this statute also, the procedure prescribed is the same as for ordinary probate sales to pay debts.

The probate court decided in favor of the bank, ordering the whole title sold, and the administratrix appealed to the circuit court. The latter court similarly ruled, and the administratrix took this appeal. Evidence was introduced by the respondent bank at the circuit-court trial showing its demand represented a note indorsed and negotiated to it by the deceased. The note was not reduced to judgment or the payment thereof secured by any voluntary or involuntary lien or incumbrance on the land during the lifetime of the deceased. The bank relied on the facts that its debt antedated the acquisition of the homestead and that its demand thereon had been allowed, to bring the claim within the homestead statute. The administratrix's position at the trial seems to have been that the bank's demand was invalid because it had made no effort to collect the note from the principal signer thereof, and because the demand based on the note had not been properly verified. She also claimed, as she does on the appeal, that the bank had no right to engraft its homestead proceeding on her application and that the court erred in awarding relief outside the scope of her application, in response to the bank's petition.

Late in 1926, long after the trial below, this court held in Maupin v. Longacre, 315 Mo. 872, 288 S.W. 54, 58, that the words "legally charged" appearing in Section 5857, imply a lien, incumbrance or claim to be satisfied out of the specific real estate proposed to be sold, and that, contrary to what had been assumed in many earlier cases, an indebtedness is not brought within the statute by the mere fact that it was contracted before the acquisition of the homestead. The latter circumstance will deprive a living debtor of his homestead exemption as against an attachment or execution on an antecedent debt, under another statute, Section 5860, Revised Statutes 1919; but this last mentioned statute has no application to the homestead estate with which Section 5857 is concerned. In view of this recent decision it is not hard to determine how the case should be ruled on the merits, but the question of our jurisdiction presents difficulties.

Does this case involve title to real estate within the meaning of Article VI, Section 12, Constitution of Missouri? There are really two proceedings: (1) the application of the administratrix to sell the real estate of the deceased, subject to and excluding the homestead, (2) and the bank's application for the sale of the same land, including the homestead. But the two proceedings were treated as raising an issue whether the homestead should or should not be sold, and were tried as one case, one judgment was rendered and one appeal taken. In these circumstances, they should be treated as one case on appeal (Bramell v. Adams, 146 Mo. 87-8, 47 S.W. 931); and if either proceeding involves title to real estate, the whole case does.

Exclusive jurisdiction of appeals in cases involving title to real estate was vested in the Supreme Court by the constitutional amendment of 1884 (Sec. 5, Art. VI) which went into effect November 19, 1884. [State v. Kyle, 166 Mo. 287, 295 et seq., 65 S.W. 763.] Starting from that time and looking over the cases decided since, it appears that the Supreme Court has assumed jurisdiction on appeal without discussion or comment, in the following cases for the probate sale of land to pay debts: Gunby v. Brown, 86 Mo. 253; Ferguson's Admr. v. Carson's Admr., 86 Mo. 673; Desloge v. Tucker (Div. 1), 196 Mo. 587, 94 S.W. 283; In re Rombauer's Estate (Div. 1), 256 S.W. 1066. During this same period the courts of appeals have tacitly asserted, and have exercised appellate jurisdiction in the following cases: Polk's Heirs v. Schulenburg, 4 Mo. App. 592; Brown v. Woody, 22 Mo. App. 253; Barlow v. Clark, 67 Mo. App. 340; In re Estate of Albert, 80 Mo. App. 557; Redman v. Adams, 88 Mo. App. 534; Hill v. Taylor, 99 Mo. App. 524; In re Wood Estate, 138 Mo. App. 258, 120 S.W. 635; Bloyd v. Hartman, 223 S.W. 676.

But there are two decisions in which the question of jurisdiction was raised and expressly determined. The first, Swan v. Thompson, 36 Mo. App. 155, 162, was a circuit court action to enjoin an administrator from making a probate sale of land to pay debts. The proceeding was appealed to the St. Louis Court of Appeals, and the administrator there moved to transfer the case to the Supreme Court on the ground that title to real estate was involved. The appellate court overruled the motion on the theory that probate proceedings for the sale of land to pay debts are like proceedings to foreclose a mortgage, to enforce a lien or to sell land under execution, in all of which it is well settled that title is not involved in the constitutional sense.

Without reference to or consideration of the Swan case, the point was ruled the other way in Dildine v. DeHart (Mo. App.), 225 S.W. 130, 293 Mo. 393, 396 (Div. 2), 239 S.W. 112. That was a proceeding to sell land to pay debts, originating in the Probate Court of Clinton County. The court made the order of sale, as prayed. Some of the devisees appealed to the circuit court. The circuit court held the order of sale void and dismissed the executors' application, because of a pending partition suit involving the same land. The executors thereupon appealed to the Kansas City Court of Appeals. The appellate court transferred the appeal to this court, on the ground that title to real estate was involved, and this court accepted jurisdiction, simply saying "that court (Kansas City Court of Appeals) was without jurisdiction, as the action involved title to real estate, which was directly affected by the judgment." The authorities cited are: Edwards v. M., K. & E. Ry. Co., 148 Mo. 513, 50 S.W. 89; Heman v. Wade, 141 Mo. 598, 43 S.W. 162; Whitecotton v. Wilson (St. L. Ct. App.), 197 S.W. 168; Davis v. Watson, 158 Mo. 192, 59 S.W. 65; Sp. Sw. Ry. Co. v. Schweitzer, 246 Mo. 122, 151 S.W. 128; and Jones v. Hogan, 211 Mo. 45, 109 S.W. 641.

In our opinion the conclusion in the Swan case, supra, is right, and the Dildine case is erroneous. The decisions cited by the latter, above set out, are all widely dissimilar in facts, and no one of them touches upon the particular question presented in that and this action. Evidently they are thought to announce a general principle, and they do. The principle running through them is that, for an action to involve title to real estate in the constitutional sense, the judgment sought or rendered must directly affect or operate upon the title. That is the law, unquestionably; but does a probate court order or a circuit court judgment (on appeal from the probate court) merely directing the sale of the intestate's real estate for the payment of his debts — does such an order or judgment, we say, directly affect title within the meaning of the Constitution? We are convinced it does not.

This court has held in many cases that title, to be involved in an action, must be in issue. As said in a statement of the rule frequently quoted: "It is not enough that the judgment, when carried into execution, will affect the title to land. The title must be involved in the suit itself, and be a matter about which there is a contest." [Bailey v. Winn, 101 Mo. 658, 12 S.W. 1045; McGregor v. Pollard, 130 Mo. 335, 32 S.W. 640; Vandergrif v. Brock, 158 Mo. 687, 59 S.W. 979; Vandeventer v. Florida Savings Bank, 232 Mo. 625, 135 S.W. 23.] Indeed, the rule goes further. Title must not only be in issue, it must be in issue directly, as distinguished from collaterally or incidentally. The law on this point has been many times declared, as, for example, that "the constitutional provision vesting appellate jurisdiction in this court in cases involving title to real estate, applies only to ca...

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