88 S.W.2d 144 | Mo. | 1935
Lead Opinion
Action in partition. Appeal was granted to the St. Louis Court of Appeals, but was transferred here on the theory that title to real estate is involved.
January 29, 1931, plaintiffs filed petition in the Circuit Court of Lewis County to partition 120 acres of land in said county. It was alleged that plaintiffs and defendants, Davidge T. Burford and Hayden M. Burford, were seized in fee of the land described. Defendants, McCutchan and Bradshaw, were made parties because they were respectively the beneficiary and trustee in a deed of trust executed by defendant, Hayden M. Burford in the described land. Process was issued on day petition was filed, returnable to the June Term of the court, which convened on third Monday in June. Process was served on all the defendants April 18, 1931, but no answer was filed, and judgment was rendered by default. The court found that plaintiffs, Daisy Tucker, Hallie M. Felgar, Louise Kilkenny and Helen Anderson, and defendants, Davidge T. Burford and Hayden M. Burford, each owned a one-sixth undivided interest in the land, and found that defendant, Hayden M. Burford, had executed deed of trust as alleged. The court also found that plaintiff, Louise Kilkenny, had executed a deed of trust on her undivided interest since the suit was filed. It was further found, as alleged, that the land was not susceptible to partition in kind and it was ordered that the land be sold and that after the payment of costs and attorney's fee, and the payment of the obligations secured by the deeds of trust from the portions of the respective grantors in said deeds of trust, the remaining proceeds be distributed to the parties in interest "in accordance with the respective rights as herein found and ascertained."
Under the decree the sheriff, after publication, sold the land to Charles E. Fee and wife, the highest bidders, on October 10, 1931, during the session of an adjourned term of the regular term of court. On December 7, 1931, and still during the June Term and in open court, the sheriff filed his report of sale. On the same day, defendant Davidge T. Burford, filed motion to set aside the sale and report of sale. The motion was overruled, and the sale and the report of sale approved, which approval was the final judgment. [Sec. 1575, R.S. 1929, Mo. Ann. Stat., sec. 1575, p. 1744; Clark v. Sires,
[1] The first question to determine is one of jurisdiction. The cause was transferred here by the St. Louis Court of Appeals under Section 1915, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1915, p. 2589), on the theory that title to real estate is involved. [Constitution, Art. 6, Sec. 12.] The subject of title to real estate being involved was considered quite at length by this court en banc in Nettleton Bank v. Estate of McGauhey,
Clevenger v. Odle,
For want of jurisdiction here, this cause should be transferred back to the St. Louis Court of Appeals, and it is so ordered.Ferguson and Hyde, CC., concur.
Addendum
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.