Tucker v. Burford

• Decision Date: 12 November 1935
• Docket Number: No. 33223.,33223.
• Citation: 88 S.W.2d 144
• Parties: DAISY TUCKER, HALLIE M. FELGAR, LOUISE KILKENNY and HELEN ANDERSON v. DAVIDGE T. BURFORD, HAYDEN M. BURFORD, JOHN S. McCUTCHAN and B.M. BRADSHAW, Defendants, DAVIDGE T. BURFORD, Appellant.
• Court: Missouri Supreme Court

88 S.W.2d 144

DAISY TUCKER, HALLIE M. FELGAR, LOUISE KILKENNY and HELEN ANDERSON v. DAVIDGE T. BURFORD, HAYDEN M. BURFORD, JOHN S. McCUTCHAN and B.M. BRADSHAW, Defendants, DAVIDGE T. BURFORD, Appellant.

No. 33223.

Supreme Court of Missouri.

Division One, November 12, 1935.

Appeal from Lewis Circuit Court. — Hon. Paul D. Higbee, Judge.

ORDERED TO THE ST. LOUIS COURT OF APPEALS.

J.L. Brightwell for appellant.

Walter M. Hilbert for respondents.

BRADLEY, C.

Action in partition. Appeal was granted to the St. Louis Court of Appeals, but was transferred here on the theory that title to real estate is involved.

January 29, 1931, plaintiffs filed petition in the Circuit Court of Lewis County to partition 120 acres of land in said county. It was alleged that plaintiffs and defendants, Davidge T. Burford and Hayden M. Burford, were seized in fee of the land described. Defendants, McCutchan and Bradshaw, were made parties because they were respectively the beneficiary and trustee in a deed of trust executed by defendant, Hayden M. Burford in the described land. Process was issued on day petition was filed, returnable to the June Term of the court, which convened on third Monday in June. Process was served on all the defendants April 18, 1931, but no answer was filed, and judgment was rendered by default. The court found that plaintiffs, Daisy Tucker, Hallie M. Felgar, Louise Kilkenny and Helen Anderson, and defendants, Davidge T. Burford and Hayden M. Burford, each owned a one-sixth undivided interest in the land, and found that defendant, Hayden M. Burford, had executed deed of trust as alleged. The court also found that plaintiff, Louise Kilkenny, had executed a deed of trust on her undivided interest since the suit was filed. It was further found, as alleged, that the land was not susceptible to partition in kind and it was ordered that the land be sold and that after the payment of costs and attorney's fee, and the payment of the obligations secured by the deeds of trust from the portions of the respective grantors in said deeds of trust, the remaining proceeds be distributed to the parties in interest "in accordance with the respective rights as herein found and ascertained."

Under the decree the sheriff, after publication, sold the land to Charles E. Fee and wife, the highest bidders, on October 10, 1931, during the session of an adjourned term of the regular term of court. On December 7, 1931, and still during the June Term and in open court, the sheriff filed his report of sale. On the same day, defendant Davidge T. Burford, filed motion to set aside the sale and report of sale. The motion was overruled, and the sale and the report of sale approved, which approval was the final judgment. [Sec. 1575, R.S. 1929, Mo. Ann. Stat., sec. 1575, p. 1744; Clark v. Sires, 193 Mo. 502, 92 S.W. 224.] The court found, in considering the report of sale, that the land was sold for $3265, and "was sold clear of taxes due on date of sale;" that the taxes due on date of sale was $400.01; that the total amount of costs, including attorney's fee and taxes, was $632.46, leaving "in the hands of the said sheriff for distribution the sum of $2632.54." The sheriff was ordered to execute deed to the purchasers and the record shows that such deed was acknowledged by the sheriff in open court. Defendant, Davidge T. Burford appealed.

[1] The first question to determine is one of jurisdiction. The cause was transferred here by the St. Louis Court of Appeals under Section 1915, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1915, p. 2589), on the theory that title to real estate is involved. [Constitution, Art. 6, Sec. 12.] The subject of title to real estate being involved was considered quite at length by this court en banc in Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 2 S.W. (2d) 771. It was there said: "It is not to be understood that jurisdiction is always dependent upon the issues made by the pleadings or upon the technical perfection thereof. The kind of jurisdiction we are considering is appellate jurisdiction over the subject-matter. Unless a court have that, it cannot pass upon the sufficiency of the pleadings. [State ex rel. v. Shain, 297 Mo. 369, 381, 248 S.W. 591; 15 C.J. 734, sec. 35.] If the judgment rendered determine title, that is sufficient to classify the controversy, and title is involved in the constitutional sense, regardless of whether or not the pleadings are broad enough to sustain the judgment (Kennedy v. Duncan, 224 Mo. 661, 666, 123 S.W. 856; Watts v. Watts, 304 Mo. 361, 365, 263 S.W. 421), but it can be said, at least, the judgment must be such as would be responsive if a title issue were raised by the pleadings. It must be that kind of a judgment. Conversely, though the judgment rendered do not determine title, yet if the judgment sought by the appealing litigant would directly affect title, title is directly in issue, and therefore involved, but in that case the pleadings must be looked to to settle the question."

Clevenger v. Odle, 329 Mo. 387, 44 S.W. (2d) 622, was in partition and the appeal was to this court. In that case it was...