Luther v. Brown

132 Mo. 70 | Mo. | 1895

Bobinson, J.

Plaintiff instituted this suit in the Audrain circuit court, for breach of covenants contained in a warranty deed made by defendant to plaintiff, wherein it is alleged that by reason of incumbrances placed and suffered to remain upon the lands conveyed to him by plaintiffs, which he was required to pay off and discharge, and for other costs and expenses he was put to in removing a cloud and apparent outstanding titles against said lands, he is damaged in the sum of $1,000, for which he asks judgment against plaintiff.

At the close of plaintiff’s case in the trial court judgment was rendered against him on a motion in the nature of a demurrer to the testimony, and plaintiff has prosecuted his appeal to this court.

No suggestion is made as to why the case was sent here, nor is there raised by counsel on either side since it has reached this court, any question as to its jurisdiction to hear and determine this appeal. As our jurisdiction of this cause depends, not upon the consent or agreement of the litigants, but upon the authority of the law, which the litigant can not waive, we see no warrant for the exercise of jurisdiction by this court over the subject-matter of this appeal.

The amount involved is less than $2,500, and there can be no fair claim of jurisdiction in this court, under that clause of the constitution which gives to it appellate jurisdiction “in all cases involving title to real estate.” Yet that was evidently the reason that prompted the trial court in certifying the case here, as no other is within the realm of conjecture.

While during the progress of the trial of the cause the title to the real estate deeded by defendant to plaintiff would necessarily be questioned and its imperfections (if any) short of the covenants contained in plaintiff’s deed would be involved in the determination of the' question as to the amount of plaintiff’s damage lor the breach of the covenants, still the title to real ■estate is not involved in the sense that the real estate would be affected by the ascertainment of the facts evolved at the trial, and on which a judgment was sought as would under the provisions of the constitution give this court appellate jurisdiction when the ■amount involved is less than $2,500. If a judgment was rendered because of the defect of title to the real estate named it would sound in damages and be personal against defendant and no decree or judgment would be entered that could in any wise involve or .affect the title to the real estate named in the petition, ■different- from the way that all other real estate to plaintiff belonging might be affected by the judgment for cost that was rendered against him. There is no ■dispute as to the existing title to the land. This suit .grew out of a past condition of the title that plaintiff .has made good by the expenditure of money, which he claims to be entitled now to recover by reason of fhe covenants contained in defendant’s conveyance to him.

As the amount plaintiffs seek to recover is less than •$2,500, and the title to real estate is not involved, this ■court is wanting in jurisdiction and therefore orders that same be transferred to the St. Louis court of appeals.

Brace, C. J., Barclay and Macearlane, JJ., ■concur in the result.