I did not discuss the question of the court's jurisdiction in the opinion I prepared in this case and which was not adopted on the alleged ground of a lack of jurisdiction because I thought it sufficiently appeared from the statement of the facts and the points ruled upon.
The question at issue and the one necessary to the final disposition of the case was the validity of the deed from the Mendelsohn-Strauss Realty Company to Well and Kupfer to the lots in controversy. To enjoin the sale of these lots, as the statement of the facts discloses, this suit was brought. The double-barreled contention of the respondents, first, that the corporation is nonexistent, and second, that it has, by its deed, divested itself of title, does not affect, much less eliminate the fact, that the title to these lots is necessarily involved in and vitally affected by this proceeding. The question of the right of the sheriff to sell the lots to satisfy McHrath's judgment is a necessary corollary to the validity of the deed. The determination of the title of the land conveyed therein was the prime essential to the solution of that question. In holding, as we did, in the opinion submitted, that the deed, while regular on its face and purporting to convey the title, was invalid in having been made without authority, the title to the lots was not only directly involved but was passed upon. Thus determined, as it was shown in the opinion, the title was, in our judgment, so affected or operated upon as to confer jurisdiction upon the Supreme Court to determine the case.
The meaning of the constitutional phrase "cases involving title to real estate" (Sec. 12. Art. VI. Const. Mo.), is that "the case as tried must involve the title." [Hilton v. St. Louis,129 Mo. 389, 391.] Judge MACFARLANE, in discussing this question in the Hilton case, says: "We take the provision to mean that the title to real estate must in some way be affected by the judgment to be rendered on the entire case as made by the pleadings and evidence."
In Price v. Blankenship, 144 Mo. 203, 209, 45 S.W. 1124, it is held that to give the Supreme Court jurisdiction "the judgment to be rendered must directly affect the title itself to the real estate." *Page 317
At bar the suit was brought to enjoin the sale of the lots under an execution. The involution of the title thereto was not only an essential but a vital requisite to the determination of the issue. In the discussion of this question we held in the opinion submitted, that the deed made by the corporation to the lots was void. This ruling would have, if the opinion had been adopted, resulted in holding that the appellants were authorized to sell the land or, stated conversely, that the plaintiffs were not entitled to maintain their action. However, regardless of the rulings as affecting the rights of the parties, the judgment rendered must of necessity affect the title to the lots. Furthermore, as an additional reason for the conclusion that the Supreme Court has jurisdiction, is the fact that only by a sale of these lots can this judgment be satisfied. It was disclosed in the evidence that the lots constituted the sole assets of the corporation. It is no longer a going concern and has no other property. The satisfaction of McHrath's judgment, therefore,with money can only be accomplished by the enforcement of the execution levied on the lots and their sale thereunder. It is something more then, than a mere pecuniary liability. [Heman v. Wade, 141 Mo. 601, 43 S.W. 162; Price v. Blankenship,144 Mo. 209, 45 S.W. 1123.]
To maintain the action to enjoin the sheriff from selling the lots under an execution to satisfy McHrath's judgment, it would have been necessary for the plaintiffs to have established their title to the same. Their right to appeal to this court, if the judgment of the trial court had been adverse to them, cannot be questioned. On the other hand, the judgment having been in their favor the defendants are entitled to a like right of appeal and a determination of the case in the Supreme Court. Real estate cannot be so involved as to give a right of appeal to one party to which the other is not entitled. This conclusion needs no precedent to attest its cogency; it is based on common sense and that uniformity in the granting of rights to litigants, without which justice cannot be properly administered.
Illustrative of this right we held in Bryant v. Russell,127 Mo. 422, 30 S.W. 107, that title to real estate was involved in an appeal from a ruling of the trial court on a motion for leave to redeem land from an execution for benefits under the Kansas City Charter as from other special orders after judgment. [Laws 1891, p. 70, now Sec. 1469, R.S. 1919.] The facts in this case briefly stated, are as follows: A special execution was issued against the property of Mary R. Bryant to enforce the assessment of benefits against her property. After the required notice the property was sold to satisfy the execution. Within a short time thereafter she filed a motion to quash the execution and for leave to redeem the land. The trial court sustained this motion and allowed her to redeem upon the payment of the *Page 318 amount of the benefit charges. The purchaser of the property at the execution sale resisted this motion and upon the court sustaining it appealed to this court which entertained jurisdiction and affirmed the judgment.
In Nearen v. Bakewell, 110 Mo. 645, 19 S.W. 988, this court entertained jurisdiction in a suit brought to cancel certain promissory notes and compel the return to the plaintiff of a cash payment on a purchase of land on account of fraud. The court found the issues for the plaintiffs, enjoined the collection of the notes, decreed their cancellation and the delivery of the deed to the defendants. Unlike the case at bar it was not necessary to pass upon the title as a requisite to a judgment for the plaintiffs. The reasons, therefore, in favor of the Supreme Court's jurisdiction are not as patent as in the instant case, which we repeat, necessarily involves a determination of the title to the lots to authorize the rendition of a judgment.
It was ruled in Gardner v. Terry, 99 Mo. 523, 12 S.W. 888, that this court had jurisdiction in a suit to enjoin the sale of two lots under a deed of trust, where the issue the plaintiff tendered was the same he would have been entitled to make in an action of ejectment brought against him by the purchaser at the sale. If title is involved, therefore, under the facts in the Gardner case, more convincing reasons may be adduced for invoking its existence in the instant case. Ejectment is but a possessory action. That having been established the case is made. In a suit to enjoin the levying of an execution, however, and the sale of land thereunder it is necessary for one contesting that right to show title in the property sought to be sold. Certainly it cannot be contended that such showing does not of necessity involve a determination of title.
The long line of decisions to the effect under different subordinate facts, that this court will not exercise its jurisdiction in cases where the title to land is only incidentally or indirectly affected are not controlling in a case presenting the facts of that at bar. Here, indisputably the title to the lots is directly and necessarily involved. Rulings, therefore, as in Corbett v. Brown, 263 S.W. (Mo.) 233, and the numerous cases cited and discussed therein are not decisive of the jurisdiction of the court in the pending case. The same may be said of Vandeventer v. Florida Sav. Bank, 232 Mo. 618, 135 S.W. 23, and the earlier cases therein cited and discussed by Judge WOODSON. This fact should be borne in mind, that it is not the character of the case viewed superficially that determines whether the involution of title to land is necessary to the determination of jurisdiction, but are the issues such as to not only require but demand that a review and a finding as to the title is necessary to a proper disposition of the case. Imbued with this idea the opinion submitted was prepared and it is insisted, if correct as to the merits, that it should *Page 319 have been adopted. I am therefore of the opinion that this court should retain jurisdiction of and determine this case.
I have attached to the file copy of this dissenting opinion a copy of the original opinion, prepared by me, which discloses facts showing our jurisdiction.