Wood v. Gregory

• Decision Date: 30 October 1941
• Docket Number: No. 37684.,37684.
• Citation: 155 S.W.2d 168
• Parties: WOOD v. GREGORY.
• Court: Missouri Supreme Court

155 S.W.2d 168

WOOD v. GREGORY.

No. 37684.

Supreme Court of Missouri, Division No. 1.

October 30, 1941.

[155 S.W.2d 169]

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action in ejectment by C. E. Wood against E. L. Gregory. From a judgment for plaintiff, defendant appeals.

Cause transferred to Springfield Court of Appeals.

Farrington & Curtis, of Springfield, and E. C. Curtis, of Hartville, for appellant.

DALTON, Commissioner.

Action in ejectment for one-half acre, more or less, of described lands in Wright county. By answer defendant set up an affirmative defense of estoppel and prayed a determination of title. The trial court found for plaintiff and defendant has appealed.

The petition, in conventional form, prayed judgment for possession, together with damages in the sum of $100 and for rents and profits at the rate of $5 per month from September 15, 1939.

The answer, after a general denial, alleged that defendant was engaged in business in Mountain Grove, Missouri; that in 1932 plaintiff solicited and induced defendant to move from Mountain Grove to said described premises, "then and now owned by plaintiff"; that plaintiff "orally agreed with defendant at the time that, if the defendant would consent to engage in said business of general merchandising at said place, he, the plaintiff, would grant to the defendant a license to occupy said real estate, * * * free of any charge for rent," so long as the defendant continued to conduct a general merchandise store thereon; that defendant, in consideration of said promise and license and at great expense to himself, purchased building materials and caused to be erected a store building on said real estate at a cost of approximately $500; that defendant purchased a stock of general merchandise and placed the same in the building; that he had ever since said time been engaged in the business of general merchandising at said point; that he had built up a valuable and lucrative business; that he had fully complied with the agreement on his part; that said building could not be moved without completely destroying its value; that the said business and good will would be a complete loss in the event he should be required to remove from said location; and that by reason of the facts above set forth plaintiff was in equity estopped to prosecute this action for the possession of said premises. Defendant prayed that in the event the court should find the plaintiff entitled to the possession of the premises that defendant have judgment against plaintiff for $1,500 as damages for the value of said building erected by defendant and for damages to the business of the defendant.

Defendant further prayed the court "to try, ascertain and determine the estate, title, right and interest of the plaintiff and defendant respectively in and to said real estate; that the court define and adjudge by its judgment and decree the estate, title and interest of the parties severally in and to said real estate; that the defendant shall be adjudged to have a license to occupy and use said real estate so long as he may continue the business of a general merchant thereon"; that the plaintiff be enjoined and restrained from interfering with the operation of defendant's business and with the rights of the defendant in said real estate for the duration of said license, and for general relief. By reply plaintiff denied the new matter set up in the answer.

The trial court found the defendant guilty "of the trespass and ejectment in the petition alleged" and adjudged that the plaintiff recover of defendant the possession of the lands described in the petition, but that the defendant have the right to remove the building located on said premises on or before June 10, 1940, and ordered that execution issue to restore possession to plaintiff, after the expiration of the time allowed defendant for the removal of said building. No damages were awarded and rental value was not determined.

The judgment appealed from, therefore, did no more than determine the right to possession of the described real estate and the right to the improvements. It did not determine title as requested in the answer. Appellant does not expressly complain of the court's failure to determine title but does contend that "the court erred * * * in refusing to adjudge the defendant a licensee of the premises for so long a time as he continued to operate a general merchandise store thereon." Under points and authorities and in argument appellant claims that, under the facts pleaded and proven with reference to the erection of valuable and lasting improvements upon the real estate, the oral license given to him has become irrevocable, "amounting to substantially an easement"; and that he has the right to possession so long as he continues to operate a general merchandise store thereon.

We must first determine the question of our jurisdiction of this appeal. The amount in dispute in this cause is insufficient to give this court jurisdiction. § 2078, R.S.1939, Mo.St.Ann. § 1914, p. 2587, Amendment 1884, § 3, Constitution of Missouri. Appellant contends that title to real estate is involved within the meaning of § 12, Art. 6, Constitution of Missouri, and cites: Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L. R. 365; Baker v. Squire, 143 Mo. 92, 44 S. W. 792; and Murphy v. Milby, 344 Mo. 1080, 130 S.W.2d 518. The case of Tooker v. Missouri Power & Light Co., supra, has been overruled. Ballenger v. Windes, 338 Mo. 1039, 1043, 93 S.W.2d 882; Gibbany v. Walker, en banc, 342 Mo. 156, 113 S.W. 2d 792. The same is true of Baker v. Squire, supra. See Oliver v. Wilhite, 329 Mo. 524, 45 S.W.2d 1083, 1084, Id., Mo. App., 41 S.W.2d 825, and Id., 227 Mo.App. 538, 55 S.W.2d 491. In the case of Murphy v. Milby, supra, "defendants filed an answer alleging ownership of title to the lands described in plaintiff's petition and prayed the court to quiet title in them." The case, under said facts, is inapplicable here.

The constitutional provision vesting appellate jurisdiction in this court in cases involving title to real estate applies only to cases in which title to land is the subject of the controversy and in which the judgment will operate directly upon the title and determine title in some measure adversely to one litigant and in favor of another, or take title from one and give it to another. Burch v. Horn, Mo.Sup., 152 S.W.2d 88, 90; Gibbany v. Walker, supra.

We have no jurisdiction on the basis of the facts stated in the petition, which is a straight action in ejectment, a possessory action, and title is only incidentally or collaterally involved. Federal Land Bank of St. Louis v. Bross, Mo.Sup., 116 S.W.2d 6, 7; State ex rel. Edie v. Shain, Mo.Sup., 152 S.W.2d 174, 176. Although the answer contains a prayer for the court to quiet and determine title to the real estate described, the jurisdiction of this court is not to be determined solely by the prayer for relief, especially where the prayer is not warranted by or consistent with the facts stated in the pleading. Brutcher v. Fitzsimmons, Mo.Sup., 122 S. W.2d 881, 882; General Theatrical Enterprises, Inc. v. Lyris, Mo.Sup., 121 S.W.2d 139; Ballenger v. Windes, supra; State ex rel. v. Dearing, en banc, 180 Mo. 53, 63, 79 S.W. 454, 457.

We think it is clear from the pleadings and from the evidence in the record that there is no actual controversy here over the ownership of the property or of any interest therein. The petition alleges that plaintiff was legally entitled to the possession of the described real estate and defendant's answer...