State ex rel. Reed v. Elliott

• Decision Date: 17 March 1904
• Parties: THE STATE ex rel. REED, Collector, v. ELLIOTT et al., Appellants
• Court: Missouri Supreme Court

79 S.W. 696

180 Mo. 658

THE STATE ex rel. REED, Collector, v. ELLIOTT et al., Appellants

Supreme Court of Missouri, First Division

March 17, 1904

Transferred from Kansas City Court of Appeals.

Cause remanded to Kansas City Court of Appeals.

Howard Gray for appellants.

Geo. E Booth, E. O. Brown and Geo. W. Crowder for respondent.

OPINION

MARSHALL, J.

This is an appeal from an order overruling a motion to set aside a sheriff's sale of real estate for delinquent taxes.

The facts are: that the relator, as city collector of Webb City brought suit against the defendants, to recover the city taxes on a certain twenty acres of land, for the years 1893 to 1897, inclusive, aggregating, with interest and penalties, the sum of $ 76.82. The defendants were properly summoned, and appeared, pleaded and defended the case, with the result that a judgment was rendered in favor of the defendants for the taxes claimed for all the said years except the year 1894, and in favor of the relator for the taxes for that year, amounting to $ 22.43, and "that the State lien against said real estate be enforced," and the land be sold to satisfy the same. The execution followed the judgment and declared the judgment to be "a lien in favor of the State of Missouri upon the above described real estate," and ordered the sheriff to sell the land to satisfy the State's lien therefor. The judgment was rendered and the execution issued at the March term, 1899, of the Jasper Circuit Court. The next term of the circuit court was in September, 1899. At the September term, to-wit, on September 5, 1899, the sheriff sold the land, and Geo. W. Taylor became the purchaser thereof for $ 12.50. The testimony shows that the land was worth four thousand dollars. Thereafter, at the said September term, to-wit, on September 12, 1899, and before the sheriff's sale had been approved by the court, or a deed made by the sheriff to said Taylor, the defendants, after proper notice, filed a motion to set aside the judgment, and also to set aside the sheriff's sale, on the ground that the judgment was void because it attempted to enforce the State's lien, when in fact the State had no lien for the taxes, but the taxes were city taxes, and therefore the lien was in favor of the city; and to set aside the sheriff's sale for the same reason, and also because the price at which the land was sold by the sheriff was grossly inadequate, and that, under the circumstances, it was the duty of the sheriff to return the execution unsatisfied, and declare "no sale for want of bidders." The trial court overruled the motion, and the defendants appealed to the Kansas City Court of Appeals. That court transferred the case to this court upon the ground that "the case is 'one involving title to real estate' within the meaning of the Constitution, sec. 12, art. 6," basing its ruling upon the case of McAnaw v. Matthis, 129 Mo. 142, 31 S.W. 344.

The primary question in this case is whether this court has jurisdiction thereof.

The action of the Kansas City Court of Appeals was justified by the decision of this court in McAnaw v. Matthis, 129 Mo. 142, 31 S.W. 344, but the question presents itself whether that case properly declared the law.

McAnaw v. Matthis, supra, was an appeal from an order sustaining a motion to set aside a sale of real estate by a sheriff under an execution upon a judgment, rendered in a personal action, begun before a justice of the peace, and appealed to the circuit court, where the appeal was dismissed for failure to give a new appeal bond. The Kansas City Court of Appeals transferred that case to this court on the ground that title to real estate was involved. This court so stated, and disposed of the question by simply saying, "In which opinion we coincide."

Now it is clear that title to real estate cannot be involved in a personal action begun before a justice of the peace, to recover $ 217 from the defendant. A justice of the peace has no jurisdiction of an action which involves title to real estate. In certain cases a justice of the peace has jurisdiction in cases which seek to fasten a lien on real estate, but such cases necessarily presuppose that the title is in the defendant, and the object and purpose of the suit is to fasten a lien on it as the property of the defendant. McAnaw v. Matthis, was not even a suit to fasten a lien on real estate. It was a plain action, in personam, to recover a debt, and did not involve title to real estate in any sense whatever.

The question of when title to real estate is involved has been often before this court since the decision in McAnaw v. Matthis, and that case is out of line with the rules laid down in the subsequent cases.

In Balz v. Nelson, 171 Mo. l. c. 682, 72 S.W. 527, the question of when title to real estate is involved was considered, and it was there said:

"The primary question in this case is whether this court has jurisdiction. It is a bill in equity to declare fraudulent and void the deeds of Nels and Sophie Nelson to Emma Decker and from Emma Decker to Sophie Nelson, and for an order of sale of the real estate to satisfy the plaintiff's judgment. Those deeds are muniments of title. They constitute the public record which declares to the world that the title is in Sophie Nelson. Without them, the title would in fact and according to the record be in Nels Nelson. The judgment to be rendered, if the plaintiffs succeed, will therefore strike down and cut out, root and branch, these muniments of title, and the effect of a judgment in plaintiff's favor will be to divest the title out of Sophie Nelson and revest it in Nels Nelson. The fact that after this is done the land can be sold as the land of Nels Nelson to satisfy the plaintiffs' judgment, does not change the character of the action, nor take out of the case the main issue in controversy, to-wit, the question whether the land belongs of right, as to these creditors, to the wife or the husband, nor does the fact that if the husband should pay the plaintiff's judgment and thereby take away the plaintiff's right to question or controvert the title that is now in Mrs. Nelson, affect the matter. No such issue is raised, and no such condition presented in this case. The only controverted issue is over the title. The subsequent sale of the land will follow of course if the deeds that vested the title in Mrs. Nelson are set aside and the title is thereby revested in Nels Nelson. The title to real estate is thereby directly and necessarily involved in this case, and therefore the appellate jurisdiction is in this court, and not in the Court of Appeals. [Price v. Blankenship, 144 Mo. l. c. 203, 45 S.W. 1123; May v. Trust Co., 138 Mo. 275, 39 S.W. 782; Hanna v. Land Co., 126 Mo. 1, 28 S.W. 652; Bank v. Ins. Co., 145 Mo. 127, 46 S.W. 615; Edwards v. Railroad, 148 Mo. l. c. 516.] See, also, Beland v. Brewing Assn., 157 Mo. 593, 58 S.W. 1, where the suit was to cancel a deed of trust after the debt was alleged to be paid; Crothers v. Busch, 153 Mo. 606, 55 S.W. 149, where the suit was to set aside a deed of trust on the ground of fraud; Truesdale v. Brennan, 153 Mo. 600, 55 S.W. 147, where the suit was to have a deed of trust declared to be entitled to priority over a deed of trust that was recorded before the former; State ex rel. v. Rombauer, 124 Mo. 598, 28 S.W. 75, where the suit was to set aside a judgment of condemnation of the land.

"If the suit was simply to establish or enforce a special taxbill, or a mechanics' or vendor's lien or any other kind of a lien, the title to real estate would not be involved. [State ex rel. v. Court of Appeals, 67 Mo. 199; Corrigan v. Morris, 97 Mo. 174, 10 S.W. 880; Bobb v. Wolff, 105 Mo. 52, 16 S.W. 835; Syenite Granite Co. v. Bobb, 97 Mo. 46, 11 S.W. 225; Baier v. Berberich, 77 Mo. 413; Bailey v. Winn, 101 Mo. 649, 12 S.W. 1045.] And the reason is that in all such cases the title is necessarily conceded to be in the defendant, for otherwise the plaintiff would not be entitled to a lien against the land in that suit, and therefore no judgment that could be rendered in the case could divest the title out of the defendant. The result of the establishment of the lien on the land and the sale of the land to satisfy the judgment might be...