Northcutt v. Eager

• Decision Date: 28 January 1896
• Citation: 33 S.W. 1125,132 Mo. 265
• Parties: Northcutt, Plaintiff in Error, v. Eager et al
• Court: Missouri Supreme Court

33 S.W. 1125

132 Mo. 265

Northcutt, Plaintiff in Error, v. Eager et al

Supreme Court of Missouri, First Division

January 28, 1896

Error to Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

Odon Guitar and Gordon & Gordon for plaintiff in error.

(1) This proceeding was instituted with a full knowledge of the fact that this court had indirectly in several cases, and directly in at least one case (Webb v. Donaldson, 60 Mo. 394) ruled against the interpretation sought to be given sections 2092, 2093, R. S. 1889, by plaintiff in error. The only object of the statute in question was to enlarge the jurisdiction of our courts, so as to furnish relief in a large class of cases that were remediless under the old forms of procedure. Patterson v. McCamant, 28 Mo. 210; Marmaduke v. Railroad, 30 Mo. 545; Chamberlain v. Marshall, 8 F. 398; Joyce v. McAvoy, 31 Cal 274; Castro v. Barry, 21 P. 946, and cases hereinafter cited. (2) The federal courts in a large number of consistent, and well considered decisions, in expounding and applying similar, though no broader enactments of different states, have adhered unwaveringly to the positions taken in Clark v. Smith, 38 U.S. 194. Holland v Challen, 110 U.S. 15; Stark v. Starr, 6 Wall. (Ore.) 402; Grand Rapids v. Sparrow, 36 F. 210 (Mich.) ; Chamberlain v. Marshall, 8 F. (Ohio) 298. (3) A reference to the decisions of the state courts where statutes of a like character have been adopted, will develop the same result. By a line of able and consistent decisions they maintain the "enlarged jurisdiction" we contend for, "that a party in the lawful and actual possession of land claiming title thereto, has the right to have "any adverse claim, or title set up by another, tried and determined;" and that courts of law or equity under their enlarged jurisdiction, conferred by statutes like ours, have the power to try and determine the issue thus presented between the claimants. Rhea v. Dick, 34 Ohio St. 420; Bogert v. Elizabeth, 27 N.J.Eq. 568; Nixon v. Walter, 41 N.J.Eq. 103; Curtis v. Sutter, 15 Cal. 260; Head v. Fordyce, 17 Cal. 151; Joyce v. McAvoy, 31 Cal. 287; People v. Carter, 66 Cal. 551; Horn v. Jones, 28 Cal. 196; Goldberg v. Taylor, 2 Utah, 486; Giltelenan v. Lemert, 13 Kan. 476; Giles v. Ortman, 11 Kan. 59; Brennan v. Bigelow, 8 Kan. 496; Eaton v. Giles, 5 Kan. 24; Lewis v. Soule, 52 Iowa 11; Lees v. Whetmore, 58 Iowa 170. In construing legislative enactments of foreign countries or other states, it is the well settled practice to adopt the interpretation of the law, which the judicial tribunals of such states or foreign countries have given to it. Skouten v. Wood, 57 Mo. 380.

Draffen & Williams for defendants in error.

The court below properly refused to require defendants to institute an action against the plaintiff upon the claim of title set up by them. The answer expressly disclaims any right to the present possession of the land on defendant's part, and alleges that the plaintiff has in no manner interfered with their rights. The defendants have no ground of action against the plaintiff, and the court very properly declined to require them to sue. Webb v. Donaldson, 60 Mo. 394; Colline, etc., Association v. Johnson, 120 Mo. 299; Northcutt v. Eager, 51 Mo.App. 219; Dyer v. Bannister, 87 Mo. 134; Bent v. Warren, 30 Mo.App. 332; Bredell v. Alexander, 8 Mo.App. 110; Von Phul v. Penn, 31 Mo. 333; Dyer v. Krackauer, 14 Mo.App. 39.

Barclay, J. Brace, C. J., and Macfarlane and Robinson, JJ., concur.

OPINION

Barclay, J.

This is a proceeding to quiet title as provided by section 2092 of the practice act.

Plaintiff, in her petition filed in 1892, alleges possession of a tract of land (described); that her estate "is one of bequest and inheritance;" that the land is worth $ 6,000; that she believes defendants make some claim adverse to the estate of plaintiff, wherefore she prays that they be summoned to show cause why they should not bring an action to try their alleged title.

The court made an order on defendants to show cause accordingly, which they did. The trial court adjudged it sufficient, and thereupon refused to require them to bring an action to try the title.

The cause shown was, in substance, that defendants did not dispute plaintiff's right to present possession of the property; that they claimed only a remainder after the life estate of plaintiff, and that plaintiff had done nothing to interfere with the rights of defendants for which an action would lie by them against plaintiff.

Plaintiff took this writ of error in due course to review the adverse ruling, after the usual motion and exceptions.

1. A preliminary question is suggested by the record, namely, whether or not the case is subject to the jurisdiction of this court under the constitution. Counsel have not broached that issue, and we regret that we are not to have their aid in attempting to solve it. But, as our learned chief has forcibly remarked in consultation, "the question raises itself." And we think it can not properly be passed over; certainly not in view of the apparently conflicting judgments bearing upon the general subject involved.

Both of the courts of appeals, since the partition of final appellate jurisdiction, have at various times passed on the merits of statutory actions to quiet title, evidently supposing that they had full jurisdiction of those proceedings. Murphy v. DeFrance (1886) 23 Mo.App. 337; Burt v. Warren (1888) 30 Mo.App. 332; Apperson v. Allen (1890) 42 Mo.App. 537; Northcutt v. Eager (1892) 51 Mo.App. 218; Cook v. Von Phul (1893) 55 Mo.App. 487; McGrath v. Mitchell (1894) 56 Mo.App. 626; Root v. Mead (1894), 58 Mo.App. 477.

As the St. Louis appellate court has declared that it now follows the practice of transferring to the supreme court all cases "where there is the slightest question" of its power to decide (Miller Grain, etc., Co. v. Railroad (1895) 61 Mo.App. 295), we may infer that that court, at least as now constituted, entertains no doubt of its jurisdiction over cases such as that at bar.

On the other hand, the supreme court, since the division of final jurisdiction by the constitution, has likewise entertained and determined several of such cases, assuming (without discussion) the power to do so. Those decisions will be mentioned in the course of this opinion.

It plainly seems desirable to quiet the title of some appellate tribunal to this class of litigation, for the present, at least.

If these actions fall to the lot of the supreme court it must ordinarily be because they involve title to real estate. Const., 1875, art. 6, sec. 12. If they are not cases of that sort, then their last forum is one of the courts of appeals, barring exceptional instances where special questions may be raised calling for action by the supreme court, or where such action may be invoked in consequence of some decision of the court of appeals (as pointed out by section 6 of the amendment of 1884). R. S. 1889, p. 88, sec. 6.

In the case in hand the petition contains an allegation that the real property is worth $ 6,000. Possibly that allegation was inserted upon the supposition that it raised an issue involving a dispute for that amount. But it is clear that the value of the property could be considered as raising such an issue only in event the property, or its title, was involved, and in that case the jurisdiction of the supreme court would attach, irrespective of the value of the property. If, however, neither the land nor its title is involved, it is immaterial to the present inquiry what its value may be.

The real question is whether the case involves title to realty, within the meaning of the constitution. As that instrument now stands, the duty to decide that question devolves upon us. We must perform it according to our best judgment. With all proper respect due to our learned brethren of the courts of appeals, we are not bound to accept the rulings of either of those courts as final in defining the general lines of its jurisdiction; nor are we, as yet, at liberty to hold its decision "conclusive as to its own jurisdiction in the particular case."

We are, for the present, in duty bound to express our own views of the correctness of rulings of the courts of appeals on questions affecting the jurisdiction of those courts or of this court, when properly invoked to do so.

2. This action to quiet title is based upon positive law, the terms of which will be quoted further on.

It has been said in several decisions that the proceeding "is not for the purpose of settling the title to the premises in the first instance." Von Phul v. Penn (1861) 31 Mo. 333; Rutherford v. Ullman (1868), 42 Mo. 216; Dyer v. Baumeister (1885) 87 Mo. 134.

But the context appearing with that remark shows that the latter was not intended as a ruling on the question now before us. The remark was made to fortify the assertion that actual possession is necessary to maintain the action, and as part of a ruling that the court would not try the issue of title to discover who was in possession (or entitled to be considered constructively in possession) for the purpose of sustaining the statutory action.

The effect of the judgment which the petition seeks in this proceeding, as declared by the very language of the statute, is to forever debar and estop defendant from having or claiming any right or title adverse to plaintiff, unless defendant brings and prosecutes his action to try the title as ordered.

It has been directly ruled that the effect of such a judgment is to bar defendant from any subsequent claim to the premises. Rees v. McDaniel (1893) 115 Mo. 145 (21 S.W. 913).

Should defendant bring suit, in compliance with the order of court under the statute, the original...