18 Mo. App. 136 | Mo. Ct. App. | 1885
delivered the opinion of the court on motion to set aside order of transfer to supreme court.
Respondent, Kate C. Miller, files a motion to set aside
In determining the question whether this is a case “involving title to real estate,” within the meaning of article YL, section 12, of the state constitution, it seems only necessary to discriminate between cases which clearly belong to that class, and controversies which relate merely to the conveyance of realty from one party to another. In a suit to enforce specific performance of a contract for the purchase or sale of land, the final adjudication settles nothing as to the positive title. That, so far as the whole controversy is concerned, may reside in a third party, or may have never emanated from the government. The only controversy is over a question of personal duty in the execution or acceptance of a deed from one party to the other. Such a case is therefore not one “ involving title to real estate.” It is like many others in which, although the final judgment may have a controlling influence on a transmission of the title, yet does not adjudicate the title itself.
Title in the sense of the constitutional provision, implies absolute ownership against all the world. In this state, it is derived from the primary proprietary through : “First, an entry of bounty land warrant location with the register or receiver of any land office of the United States, or with the commissioner of the general land office thereof; or, second, an entry with the register and receiver of any land office in this state; or, third, a pre-emption right under the laws of the United States, or of this state; or, fourth, a New Madrid location * * * ” (Rev. Stat., sect.
The struggle in the present litigation closes chiefly around the validity of a certain deed, and of a judgment which that deed was instrumental in procuring. But this no more indicates what the case involves, than the attack and defence of a particular fort may indicate the object of the war. The purpose of the suit as described in the brief of counsel for the respondent, is “to obtain a decree declaring null and void as a forgery a certain paper, purporting to be a deed from one Sarah Lucas to one Andrew P. Gillespie, in said petition mentioned; also, that such decree declare null and void a certain judgment in ejectment recovered by said George C. Miller against said John A. Dunn, on June 9, 1873, in the circuit court of St. Louis county, Missouri, on the ground that said judgment was obtained by means of said fraudulent deed; and that the defendants be enjoined from taking any action under said judgment or under a judgment rendered by the supreme court in a certain other ejectment suit concerning the same property, brought by said Dunn against said Miller’s heirs; and for possession of the land involved in said suits, and for a perpetual injunction against defendants.”
It appears, then, that the deed is attacked for the purpose of reversing the effect of a judgment in ejectment, which directly adjudicated the absolute title of the land, which distinctly determined to whom the rights of the original proprietary had descended. Hów can it be said