Thomas v. Scott

• Decision Date: 25 November 1908
• Citation: 113 S.W. 1093,214 Mo. 430
• Parties: MATTHEW W. THOMAS v. NORA E. SCOTT, Plaintiff in Error
• Court: Missouri Supreme Court

113 S.W. 1093

214 Mo. 430

MATTHEW W. THOMAS v. NORA E. SCOTT, Plaintiff in Error

Supreme Court of Missouri

November 25, 1908

Motion overruled.

Jas. E Goodrich and William Henry for plaintiff in error.

Hewitt & Hewitt for defendant in error.

GANTT C. J. Burgess, Valliant, Fox, Lamm and Graves, JJ., concur. Woodson, J., dissents.

OPINION

In Banc.

On Motion to Transfer to Kansas City Court of Appeals.

GANTT C. J.

-- This was a proceeding in the circuit court of DeKalb county, Missouri, to establish a lost deed under section 4565 and following sections of the Revised Statutes 1899.

The plaintiff in his petition set out his title from the Government down to Nora E. Hainline, who acquired her title March 26, 1896. The petition then alleges the execution and delivery of a quitclaim deed from Nora E. Hainline and Robert N. Hainline, of date March 27, 1896, conveying the land in suit to F. Thomas Hainline, which deed the plaintiff alleges was destroyed and seeks to establish by said proceeding, then alleges the execution of a deed by the said F. Thomas Hainline to the plaintiff Matthew W. Thomas, and then prays the court to hear and make a record concerning the execution of the deed from said Nora E. Hainline and her husband to said F. Thomas Hainline, and also to adjudge and determine plaintiff's interest in said lands according to the evidence adjudging the same. The answer filed by Mrs. Scott, formerly Mrs. Nora E. Hainline, denies the ownership of the plaintiff Thomas, and denies the execution of the alleged quitclaim deed to F. Thomas Hainline to her for a valuable consideration, denies taking a deed from said Hainline and destroying it, and alleges that she is the owner in fee simple of the land in question, and asserts that she acquired title under the trustee's deed from one Herschel Bartlett under a power of sale contained in a trust deed executed by said F. Thomas Hainline and wife to secure the payment of a note for $ 1,300 to the Mutual Benefit Life Insurance Company. She further stated in her answer that, desiring to provide F. Thomas Hainline a home during his life and intending to convey him a life estate, by mistake, the scrivener drew a quitclaim deed, but there was no consideration expressed in the deed, nor in fact any given her for it, as said deed was never delivered, but that in 1896 F. Thomas Hainline thinking said deed had been so managed as to amount to a delivery had it destroyed with the purpose of revesting the title in Nora E. Hainline, fearing that his creditors might otherwise deprive him of his interest, if any. She further alleged a fraudulent conspiracy between the plaintiff Thomas and F. Thomas Hainline, the chief defendant, by securing the establishment of the deed in question.

The petition was sworn to by F. Thomas Hainline and the plaintiff Matthew W. Thomas did not testify. There was evidence tending to show the execution of the deed and its delivery to F. Thomas Hainline in March, 1896; that thereafter said Hainline gave it to a Mr. Ballinger. Ballinger testified that he had the deed in his possession for three or four months, and judged that it was a quitclaim because the words "quitclaim deed" were at the top of it. There was also testimony that the defendant had stated that she burned the deed herself. On the part of the defendant there was testimony that it was her intention to make a deed granting a life estate to F. Thomas Hainline to the land in suit, that through mistake the scrivener made out a regular quitclaim deed; that there was no consideration expressed in the deed and that she gave the deed to her husband, but there was no delivery of the deed. She offered to prove that her husband was instructed not to deliver the deed to F. Thomas Hainline but the offer was rejected. That F. Thomas Hainline got the deed from Ballinger, and brought it home and directed her to burn it. That J. H. Campbell was present when Hainline told her to burn the deed. Campbell testified that Robert Hainline and F. Thomas Hainline jointly requested him to hold a lifetime deed that Mr. Ballinger had been holding, that in his presence that same day F. Thomas Hainline handed the defendant a paper and told her to destroy it or burn it. There was also testimony from other witnesses to the effect that F. Thomas Hainline disclaimed any interest in the land in question other than a lifetime deed or lease.

Matthew W. Thomas, the defendant in error, now moves this court to transfer this cause to the Kansas City Court of Appeals for the reason that the title to real estate is not involved in this action. The court in its decree found from the evidence that on the 28th day of March, 1896, Nora Hainline and her husband duly executed a quitclaim deed to the land in suit and acknowledged the same before S. P. Allen, a notary public, for the valuable consideration therein mentioned; that they thereafter delivered said deed to the said F. Thomas Hainline, and the said deed was thereafter destroyed by the said Nora E. Hainline without having been recorded and that the destruction of said deed was not for the purpose of revesting the title in said Nora E. or Robert Hainline or either of them, and the said destruction was without the consent of the said F. Thomas Hainline, and by its decree established the quitclaim deed.

I. In Anthony v. Beal, 111 Mo. 637, 20 S.W. 326, it was ruled by this court that in so far as section 4565 of article 4, chapter 59, Revised Statutes 1899, attempts to confer jurisdiction on the circuit court to try, decree and determine title to real estate, it is void under section 28 of article 4 of the Constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title," and that a proceeding under said statute cannot be converted into an action to try title to real estate between conflicting claimants, but that in such a proceeding the court should make a finding of facts and adjudge the execution of the alleged deed and its loss, and if found to be sufficient, declare the estate or interest thereby conveyed. And it will be observed that in that case the jurisdiction of this court to that extent was not questioned by either party to that suit. In Lane v. Lane, 113 Mo. 504, 21 S.W. 99, the decision in Anthony v. Beal, supra, was followed, and this court again took jurisdiction to the extent of making a decree establishing the lost deed, but held that the proceeding was not one to try title. The question presented by this motion then to transfer the cause to the Court of Appeals, is whether a proceeding under section 4565 to establish a lost deed in a chain of title involves the title to real estate so as to give this court jurisdiction on appeal under the constitutional provision found in section 12 of article 6 of the Constitution of this State, which confers jurisdiction on this court of appeals "in cases involving title to real estate." While this court entertained jurisdiction in the two cases of Anthony v. Beal and Lane v. Lane, already noted, it is to be observed that in neither of those cases was the question of jurisdiction of this court raised by either party to those cases. But it is squarely presented by the motion in this case to transfer to the Court of Appeals. In Hilton v. St. Louis, 129 Mo. 389, 31 S.W. 771, it was said by this court: "The Constitution does not declare that jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must, in some way, be affected by the judgment to be rendered on the entire case as made by the pleadings and evidence. This seems to be the view this court has uniformly taken. [Bobb v. Wolff, 105 Mo. 52, 16 S.W. 835; Blondeau v. Sheridan, 103 Mo. 134, 15 S.W. 530; Bailey v. Winn, 113 Mo. 155, 20 S.W. 21; State ex rel. v. Rombauer, 124 Mo. 598, 28 S.W. 75.]"

It has been quite uniformly ruled by this court...