Tenney v. Turner

• Decision Date: 03 April 1905
• Parties: C. H. TENNEY, Respondent, v. EMMA W. TURNER, executrix, etc., Appellant
• Court: Kansas Court of Appeals

86 S.W. 506

111 Mo.App. 597

C. H. TENNEY, Respondent, v. EMMA W. TURNER, executrix, etc., Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1905

Appeal from Jackson Circuit Court.--Hon. A. F. Evans, Judge.

REVERSED.

Cause reversed.

James A. Plotner, Elijah Robinson for appellant.

The probate court had no jurisdiction. The petition shows on its face that this is a suit to enforce the specific performance of a contract. It is, therefore, an equitable suit. The probate court has no general equity jurisdiction and is not given special jurisdiction in such a case as this. R. S 1899, sec. 1753; Administrator v. Administrator, 19 Mo. 647; Church v. McElhinney, 61 Mo. 540; Church v Robberson, 71 Mo. (loc. cit.), 335-336.

Burke & Kimpton, A. F. Smith for respondent.

(1) The probate court had jurisdiction to allow plaintiff's claim. 26 Am. & Eng. Ency. Law. (2 Ed.), 18, 19; Olmstead v. Smith, 87 Mo. 602; Thompson v. Dickerson, 68 Mo.App. 535; Pursley v. Good, 94 Mo.App. 382; Porter v. Leyhe, 67 Mo.App. 540, 543, 544; Machine Co. v. McBride, 27 Mo.App. 470; Burt v Mears, 41 Mo.App. 231.

OPINION

BROADDUS, P. J.

This action was begun in the probate court, tried, appealed to the circuit court, tried again, and appealed by defendant to this court. The foundation of plaintiff's demand is in the following writing:

"Kansas City, Missouri, 4-21, 1900. In consideration of the sum of four thousand dollars ($ 4,000) paid me by C. H. Tenney, of New York City, New York, as his part of certain moneys to be invested in a 160 acre tract of land, situated in Jasper county, Missouri, U.S.A. Said lands to be bought and deeded as follows, viz.: The undivided one-half (1-2) to Charles H. Tenney, trustee, and the undivided one-half to F. H. Turner, trustee, I agree, if result of investment is not satisfactory to said Tenney, to at any time during the period from July 1, 1903, to January 1, 1904, he may desire, to repay him said four thousand dollars ($ 4,000) less any and all amounts he may have received from royalties, sale of ore, timber or land, or in any way from said investment, and provided that on payment by me of amount as agreed, said Tenney deed to me or any party I may desire, his entire interest in and to said investments. In witness whereof I this 21st day of April, 1900, A. D. set my hand and seal. (SEAL) FRANK H. TURNER."

On the 17th of September, 1903, within the time provided in the contract that if plaintiff was not satisfied with the investment he might have a return of his money, etc., he filed his demand in the probate court for said sum of $ 4,000 against the estate of said Frank H. Turner, deceased, said Turner having died in the meantime.

The demand is made in a written statement setting up said contract and stating that he was dissatisfied with the investment and asking judgment for said sum of money against decedent's estate. The statement alleges that the property purchased in pursuance of the said contract is the east one-half of the northwest quarter, and the west half of the northeast quarter in section 10, township 27, range 30, in Jasper county, Missouri, and that the title thereto is in Frank H. Turner and plaintiff, each as trustee. Plaintiff avers that he is willing to execute a deed conveying the property to whomsoever the court may direct. It was agreed by the parties that Turner received the $ 4,000 mentioned in the contract from plaintiff; that the land described in the statement was after the date of the contract, conveyed to F. H. Turner, trustee, and C. H. Tenney, trustee, and that the title so remained at the time of the death of said Frank H. Turner; and that plaintiff had never received any amount from Turner on account of said $ 4,000, and had received nothing from royalties, sale of ore, or timber on said land.

Defendant contends that the probate court had no jurisdiction of the case, as it was a proceeding in equity to enforce specific performance of the contract. Section 173, Revised Statute 1899, does not apply, as it refers solely to cases where a testator or intestate has entered into a contract in writing for the conveyance of real estate, and had not in his lifetime executed the same, nor given power by will to execute the same, the court may decree specific performance and direct that the executor or administrator execute a deed to the other party to the contract. The plaintiff does not ask for any such relief. He has the conveyance mentioned in the contract. Therefore, said section has no application.

It is clear, however, that the proceeding is one for the specific performance of the contract: that is to say, plaintiff as...