Herriman v. Creason

[4] The prayer in the case at bar is that the conveyance of the real and personal property be "revoked, cancelled and set aside and for naught held, and be decreed fraudulent and void as to this plaintiff; that the real estate may be ordered sold, if the personal estate be found insufficient to pay plaintiff's judgment, subject to the deed of trust aforesaid, and subject to the homestead and dower of the widow, if she is entitled thereto, to satisfy plaintiff's judgment against said estate." He asks that a receiver of both real and personal property be appointed and for an accounting and upon a final accounting that the administratrix be required to pay into court a sum sufficient to pay the plaintiff's allowed demand; while the prayer in the case of Salia et al. v. Pillman, 328 Mo. 1212, 43 S.W.2d 1038, was that "the Court ascertain the exact amounts due plaintiffs and each of them and that the said property hereinabove described be subjected to the payment of plaintiffs' said judgments, and that if the same be not paid within a time limited by this Court, that said property be sold at public vendue, and out of the proceeds of said sale the plaintiffs' debts and demands, and each of them, be paid in full, together with interest and the costs of this case, and the remainder to the parties entitled thereto, and for such other and further relief as to the Court may seem meet, just and proper." In this type of case, the only relief the plaintiff could obtain is governed by the case of Stierlin v. Teschemacher,333 Mo. 1208, 64 S.W.2d 647, which is that the decree ascertain the amount due the plaintiff; that a reasonable time be fixed and allowed the defendant to pay said amount, and in event of which payment the land shall be free and clear of the lien of said claim; and that in default of such payment, the land should be sold, and the sale proceeds shall be applied upon said claim and costs of suit, and that the surplus proceeds, if any, go to the defendant.

There is no material distinction between the prayer of the case at bar and the Salia case, and if there were, the decree in both[506] cases must be the same, and any difference should be treated as surplusage. In the case of Jine v. Jine, 217 S.W. 93, we held that where the prayer asks for greater relief than the pleaded facts would justify, such relief must be treated as surplusage as the prayer is no part of the petition. In that case, we said, "All judgments become liens upon their rendition, and this prayer (which is nopart of the petition) is in a sense mere surplusage, unless the petition states facts out of which a lien would grow." (Italics mine.)

I think the majority opinion confuses this case with the two types of cases in ejectment actions, where title to real estate may or may not be determined, depending upon the prayer in the pleadings.

In creditors' fraudulent conveyance cases, title is not divested from the fraudulent grantee, but a lien is placed upon the property. In the case of Jones v. Hogan, 211 Mo. 45, 109 S.W. 641, the plaintiff alleged that one Hogan had bought the property with money concealed from his creditors and took title in his wife's name. The petition asked that the title be divested and adjudged to belong to plaintiff as trustee in bankruptcy. The judgment decreed title in the fraudulent grantee but subject to a lien in favor of plaintiff for the amount to have been paid by Hogan on the purchase price in fraud of creditors and decreed that the lien be enforced by sale. (The only judgment that legally could be entered.) We held that we did not have jurisdiction and transferred the case.

The test of whether or not title to real estate is directly involved has been stated as follows in the case of Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, l.c. 774, wherein we said: "The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it toanother." (Italics mine.) This case has been consistently followed by us since its adoption. See State ex rel. Brown v. Hughes et al., 345 Mo. 958, 137 S.W.2d 544.

Where is title directly taken from one litigant and given to the other litigant in this case?

I am unable to see where title to real property is directly involved, but the real question is whether this plaintiff is entitled to a lien upon this real estate, which later may be foreclosed. Under these circumstances, the case of Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428, holds that title to real estate is not directly involved so as to give us jurisdiction.

I think we are without jurisdiction and this case should be transferred to the Kansas City Court of Appeals. I, therefore, dissent.