Weil v. Richardson

• Decision Date: 25 May 1928
• Docket Number: 26381
• Citation: 7 S.W.2d 348,320 Mo. 310
• Parties: Jacob Weil and Benjamin R. Strauss v. Fred A. Richardson, Sheriff of Jackson County, and George D. McIlrath, Appellant
• Court: Missouri Supreme Court

7 S.W.2d 348

320 Mo. 310

Jacob Weil and Benjamin R. Strauss v. Fred A. Richardson, Sheriff of Jackson County, and George D. McIlrath, Appellant

No. 26381

Supreme Court of Missouri

May 25, 1928

Transferred from Kansas City Court of Appeals.

Remanded to Kansas City Court of Appeals.

Frank G. Warren and John C. Nipp for appellants.

Ringolsky Friedman & Boatright for respondents.

Blair J. White, P. J., concurs; Walker, J., dissents in separate opinion.

OPINION

BLAIR

This case comes to the writer upon reassignment. It is a suit to enjoin the Sheriff of Jackson County from selling under execution certain real estate in Kansas City. Judgment was rendered in the trial court permanently enjoining such sale. An appeal was granted to the Kansas City Court of Appeals, and that court transferred the case to this court on the ground that it did not have appellate jurisdiction.

The correctness of the conclusion of the Kansas City Court of Appeals that title to real estate is involved is the first question for determination. This calls for a statement of the issues raised by the pleadings and the nature of the judgment rendered in the trial court. From the pleadings, it appears that appellant George D. McIlrath obtained a judgment against Mendelsohn-Strauss Realty Company, a corporation, in the sum of $ 547 and costs, as commission for services rendered said corporation in his capacity as real estate agent. An execution on said judgment was issued and appellant Richardson, as sheriff, levied upon and advertised for sale all the right, title and interest of Mendelsohn-Strauss Realty Company in and to the real estate described in the petition.

Thereupon respondents Weil and Strauss filed their petition in the case at bar and a temporary injunction was granted. The amended petition alleges in substance that plaintiffs (respondents) are the owners of said real estate and that Mendelsohn-Strauss Realty Company has no title or interest therein, that the charter of said corporation had been forfeited before said judgment was rendered, that said judgment is void and that a sale of the right, title and interest of said Mendelsohn-Strauss Realty Company in and to said real estate under said execution would cast a cloud upon their title. Thereupon they prayed the court to enjoin said execution sale.

The answer of the sheriff is conventional and merely justifies his official action on the ground of obedience to the writ of execution. Defendant McIlrath pleaded the existence of the judgment in his favor against Mendelsohn-Strauss Realty Company for $ 547 and costs and alleged that the same is unsatisfied. He admitted that, prior to April 19, 1921, the title to the real estate described in the petition was in Mendelsohn-Strauss Realty Company. He also admitted the recording of certain instruments purporting to convey said title to Weil and Strauss. He admitted that he had caused the levy upon and advertised sale of said real estate as the property of Mendelsohn-Strauss Realty Company.

Said McIlrath then alleged facts (not necessary to state in detail) challenging the validity of the alleged conveyance of the real estate to Weil and Strauss by Mendelsohn-Strauss Realty Company, on the ground that said deed was without consideration, fraudulent and void. He prayed that the temporary injunction be dissolved and a permanent injunction be denied and that said deeds "be declared to be fraudulent and void as against this defendant and that the property referred to herein be declared to be the property of the Mendelsohn-Strauss Realty Company and that this defendant be permitted to sell said property to satisfy the execution referred to herein and that this defendant have such further and different relief as to the court may seem just and equitable."

The trial court found as a fact "that the charter of incorporation issued to the Mendelsohn-Strauss Realty Company by the Secretary of State of Missouri, was legally forfeited on December 2, 1913, that the judgment heretofore rendered in the Circuit Court of Jackson County, Missouri, at Kansas City, in favor of the defendant, George D. McIlrath and against the said Mendelsohn-Strauss Realty Company, in Cause 160609, recorded in Book 512 at page 187, was and is a nullity and void and no execution could lawfully issue thereunder."

The trial court made no finding whatever concerning the validity of the deeds purporting to convey the title to the real estate from Mendelsohn-Strauss Realty Company to respondents Weil and Strauss. Because the judgment under which the execution was issued was deemed to be null and void, the trial court perpetually enjoined the sheriff and McIlrath from selling said real estate under the execution aforesaid and "from doing any act or thing, under the said judgment and execution, or under any other execution issued in said cause, to-wit, George D. McIlrath v. Mendelsohn-Strauss Realty Company, in so far as the title and interest of said corporation, purported or otherwise, in and to the aforesaid property, is concerned."

It is manifest that the trial court did not undertake to determine the title as between Mendelsohn-Strauss Realty Company and respondents Weil and Strauss. The latter did not appeal and the supposed issue of title dropped out of the case. The judgment appealed from only determined that the judgment under which the execution was issued was null and void. That judgment certainly did not involve the title to real estate.

But even if the trial court had found, as prayed by respondents, that the sale should be enjoined because the real estate belonged to respondents and the judgment debtor, Mendelsohn-Strauss Realty Company, had no interest therein, yet the title to real estate would not be involved within the meaning of Section 12, Article VI, of our Constitution. The rule is well stated in Heman v. Wade, 141 Mo. 598, 43 S.W. 162, as follows:

"Nor do we think the title to real estate is so involved as to give this court jurisdiction of the appeal. It is true the right of plaintiffs to injunctive relief may depend upon his title to the land, and his right to its possession, yet the title is only incidentally or collaterally involved. The suit is merely in aid of the pending ejectment suit, and is not intended to try and determine the title to the land. Neither plaintiffs nor defendants ask to have the title established, nor does the judgment rendered undertake to do more than to prohibit waste, until the title is determined in the ejectment suit.

"It is sometimes difficult to determine when the title is involved within the true intent and meaning of the Constitution, but the rule is now well settled that the Supreme Court has no jurisdiction on this ground, unless the result of the litigation may directly, without subsequent proceeding, affect the title to real estate. The determination of a purely personal or pecuniary right, though dependent upon the condition of the title to land, does not involve the title unless it may in some way be affected by the judgment."

In Price v. Blankenship, 144 Mo. 203, 45 S.W. 1123, and after quoting the foregoing from Heman v. Wade, supra, it was said:

"It is now firmly settled that to give this court jurisdiction under Section 12 of Article VI of the Constitution, because the title to real estate is involved, it must appear that the title to real estate will, in some way, be directly affected by the judgment to be rendered in the case. It was not sufficient that the question of title may be incidentally, collaterally or necessarily inquired into to settle the issues. The judgment to be rendered must directly affect the title itself to the real estate."

Had the trial court denied a perpetual injunction and dissolved its temporary injunction, would such judgment "without subsequent proceeding" have affected the title to the real estate? Not at all. An actual sale of the interest of Mendelsohn-Strauss Realty Company in said real estate under the execution would have been necessary before the title would have been affected. The title itself could not have been affected by the mere denial of the injunction. It could only have been affected by a subsequent proceeding.

Price v. Blankenship, supra, was followed and quoted approvingly in Snodgrass v. Copple, 203 Mo. 480, 101 S.W. 1090. It was there held that this court did not have appellate jurisdiction of an appeal taken from the action of the trial court in sustaining a motion to quash the levy of an execution on property of the judgment debtor, claimed by him to be exempt as a homestead. The court said:

"Defendant's title will not be divested by the judgment in the case, but the judgment will leave the defendant's property exposed to the sheriff's levy and the result of that levy with the sequence may be to divest the defendant of his title. But that is the indirect not the direct effect of the judgment."

In Davis v. Watson, 158 Mo. 192, 59 S.W. 65, it was said:

"This court in construing the provisions of Section 12 of Article 6 of the Constitution, has frequently held that its jurisdiction of a case on appeal is not determined by the fact that the title to real estate has been drawn in question by the answer filed therein, or that a determination of the fact of title to real estate was necessary to the proper consideration of the issues involved in the controversy. It is not enough that title to real estate may be drawn in question, or inquired into during the progress of a case, but the judgment sought or rendered must directly affect or operate upon the title itself."

In Turner v. Morris, 222 Mo. 21, 121 S.W. 9, it was said:

"We have repeatedly held that before an appeal can be entertained by this court on the ground that title to real...