This is a writ of certiorari directed to the judges of the St. Louis Court of Appeals. Such judges have complied with the writ and certified up their record for our review. From the record it would appear that at the March term, 1914, of the St. Louis Court of Appeals there were pending three several actions, each entitled “City of Kirkwood, at the
“This is an action to enforce the lien of a special tax bill against certain real property of the defendants located in the city of Kirkwood. The defendant owners of said property resided in the city of St. Louis. The suit was instituted in the circuit court of St. Louis county, and writs of summons were sent to the sheriff of the city of St. Louis, and there served upon defendants. The latter appeared specially and moved to quash the writ, and also to dismiss the action, upon the ground that the circuit court of St.Louis county acquired no jurisdiction by virtue of service upon defendants in the city of St. Louis. These motions were overruled, and the cause coming on for trial, defendants not appearing further, 'the court rendered judgment sustaining the lien of the tax bill. Thereupon defendants again limiting their appearance, filed a motion to set aside such judgment upon the ground that the court had no jurisdiction to enter the same. This motion was likewise overruled, and defendants have appealed to this court.
“The only question involved is whether an action to enforce the lien of a special tax bill may be brought in the county where the land in question is situated, the defendants being residents of the State, but not of such county and not being found therein. Appellants ’ position is that this action is governed by section 1751,
The relator here charges that in the opinion the Court of Appeals has not followed the rulings of this court, as it was required to do by constitutional mandate — Section 6, Amendment of the Constitution of 1884.
■ The case is therefore one of compact compass. Was our writ improvidently issued or have our brothers of the Court of Appeals failed to heed the last rulings of • this court upon the question of law involved? This is the-single issue.
L Singular to say learned counsel for the> respondents in théir brief have omitted the usual charge that this court has no right to is sue'a writ of certiorari ^der the facts pleaded by the petition or relator. It is worthy of note, because of the persistency of counsel generally in raising such question in all cases- and at all times. The question was raised in the return, but we take it that upon reflection counsel concluded to abandon that claim. We shall so treat it.
II. ' Counsel for respondents do urge, however, that this court has never passed upon the exact statute in a case exactly like this, and that for such reason there could be no conflict between the opinion of the Court of Appeals, and the opinion of this court. Counsel couches -the point in this language:
“This proceeding is certiorari solely on the ground that the decision of these respondents is in
“Consequently, petitioner must show that there is such a prior controlling decision on the precise and only point in issue, namely, the construction of the word ‘affect’ in section 1753, Revised Statutes 190®.
“Petitioner admitted at the argument at your bar that there was no such controlling decision. ’ ’
Upon this point suffice it to say that the Constitution does not require wbat is known in common parlance as a “grey mule” case, for the application of our superintending control. The Constitution, section 6 of the Amendment of 1884, says: “And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals.”
The divergence of opinion which will authorize this court to quash the opinion and judgment of the Court of Appeals is a contrary holding upon a given “question of law or equity.” Rulings upon a “question of law” may be the same, although different states of fact may call for such rulings. In other words, as stated above, there may be a clear contrariety of opinion on a “question of law or equity” without having two cases exact in history or facts — a “grey mule” case is not required.
III. In the case at bar the Court of Appeals, by its opinion, has said that the case- of the City of Kirk-wood at the Relation of McMahon v. Handlan et al., is not a case wherein the title to real estate “may be affected” within the meaning of section 1753, Revised Statutes 1909. If the doctrine of law thus announced does not conflict with the last previous ruling of this court upon such a doctrine of law, then our writ should be quashed, but if it does then the Court of Appeals record (which includes the
“Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situated.”
It must be noted that the statute includes two classes of cases (I) “suits for the possession of real estate,” and (2) “or whereby the title thereto may be affected.” If the case in hand falls within the statute, it is under the second clause thereof. Relators claim that it falls within this clause, and respondents contra. The question then is what is meant by this statute in the use of such clause — and further what has been the holding' of this court upon this or similar language,
So far as my information goes it has always been the judgment of the bench and bar of this State that suits to enforce the lien of a special tax bill must be brought in the county wherein the land was situated. The general rule is thus stated by Sherwood, J., in the early case of Carr v. Lewis Coal Co.,
“As a general rule, to which this case forms no exception, it is needless to say that in order directly to subject particular property to the judgment or decree of any court, the suit brought for that purpose must be brought where the thing is.”
In the very early case of State ex rel. v. St. Louis Court of Appeals, 67 Mo. l. c. 200, this court said:
“On the 23rd day of March, 1876, the relator filed a petition in the circuit court of St. Louis county, to enjoin a sale under execution of certain real estate in St. Louis, upon the ground that such sale would cast a cloud upon his title. A perpetual injunction was
The italicized words, supra, are the handiwork of Hough, J., who wrote that opinion. He expressly holds that suits, the purpose of which are to enforce liens upon real estate, affect title, but do not necessarily involve title in the constitutional sense which gives this court jurisdiction of the appeal. It is clear to us that there is a marked distinction between the word “affect” as used in the statute, supra, and the word “involved” as used in the constitutional provision fixing our jurisdiction. The last sentence of the quotation, supra, was quoted with approval in the more recent case of Payne v. Savings Association,
Anything which casts1 a cloud upon the title to real estate is a thing which affects the title to real estate. It may not involve the title in the sense of the constitutional provision conferring jurisdiction upon-this court, but a suit to declare and foreclose by sale a lien upon land, certainly is a suit which affects title to real estate in the sense of conferring jurisdiction
The apparent lien of even a void tax hill has been recognized as a cloud upon title, so as to give jurisdiction to a court of equity to remove such cloud by proper decree. [State ex rel. Bayha v. Philips, 97 Mo. l. c. 339.]
To my mind tax liens, both general and special, and deeds of trust and other like liens, affect the title to land, but in suits brought to enforce such.liens the title to real estate may not be so involved as to confer appellate jurisdiction on the Supreme Court upon appeal. That a' deed of trust affects the title to real estate, is clearly illustrated by the doctrine that if the validity of the deed of trust itself is attacked, title itself will be so involved as to confer jurisdiction here. [Bonner v. Lisenby, 157 Mo. l. c. 167.]
In discussing the question of our jurisdiction in cases involving title to real estate it may be that we have at times loosely used the words “affected” and “involved” but when the cases are fully read there is nothing to change the clear distinction pointed out by Hough, J., in the 67 Mo., supra.
The opinion of our brothers of the Court of Ap: peals does not follow the rulings of this court. They give a construction to the statute involved that grates upon the minds of the bench and bar — a construction totally at variance with the well conceived meaning of the statute as heretofore entertained by both bench and bar. Not having followed our rulings their record should be quashed to the end that they may properly proceed with this case. It is so ordered.