FRANK, J.
Action to recover possession of certain real estate described in the petition. Verdict and judgment for plaintiffs and defendant appealed.
The petition alleges that plaintiffs are entitled to the possession of said real estate, and that defendant unlawfully withholds same from plaintiffs; that defendant committed various acts of waste on said land, planted and harvested one crop, and is growing a second crop thereon, all to plaintiffs’ damage in the sum of $1000. The petition prays for possession of said lands and damages in the sum of $1000.
The answer contains (1) a general denial, and (2) it pleads a state of facts which defendant contends shows him to be the owner of said lands, and for that reason plaintiffs are not entitled to the possession thereof. The prayer of the answer is that defendant be discharged with his costs.
Plaintiffs’ reply put at issue all the affirmative matters alleged in defendant’s answer, and prays for the relief sought in the petition.
The judgment rendered was for plaintiffs for possession of said lands, and one dollar per month for rents and profits from the date of the judgment until possession was delivered to plaintiffs.
Neither party has raised the question of this court's jurisdiction. It is not only our right but our duty to determine that question whether raised by the parties or not.
The decisions in this State are not in complete accord on this question. It is of sufficient importance that it should be settled once for all. Section 12 of Article VI of the Constitution gives this court jurisdiction “in cases involving title to real estate.” In our judgment cases involving title to real estate .within the meaning of the constitutional provision fixing our jurisdiction, are cases in which the judgment sought or rendered will directly affect or operate upon the. title itself. In cases where neither party asks that title be adjudicated, yet it is necessary for the court to ascertain which party has title in order to render the judgment asked for by the pleadings, the title is incidentally or collaterally, and not directly involved, and for that reason we would not have jurisdiction in such a case. This conclusion is supported by many prior decisions of this court. In Davis v. Watson, 158 Mo. 192, 196, 59 S. W. 65, we said:
“This court in construing Section 12 of Article VI of the Constitution, has frequently held that its jurisdiction of a case on appeal is not determined by the fact that the title to real estate has been drawn in question by the answer filed therein, or that a determination of the fact of title to real estate was necessary to the proper consideration of the issues involved in the controversy. It is not enough that title to real estate may be drawn in question, or inquired into during the progress of the case, but the judgment sought or rendered must directly affect or operate upon the title itself.”
In Hilton v. The City of St. Louis, 129 Mo. 389, 391, 31 S. W. 771, we said:
“The Constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. 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.”
Above excerpt was quoted approvingly in the later case of Fischer v. Johnson, 139 Mo. 433, 437, 41 S. W. 203.
In Schroer v. Brooks, 200 S. W. 1068, we said:
“For it is not sufficient to confer jurisdiction on us that the title to real estate may be collaterally or incidentally involved, or that the appellate tribunal may be compelled to consider it in order to reach a decision of the questions actually up for judgment.” (Citing many eases.)
In the recent case of Nettleton Bank v. McGauhey’s Estate 318 Mo. 948, 953, 2 S. W. (2d) 771, 774, we said:
“It follows that to involve title within the meaning of the Constitution a judgment must adjudicate a
title controversy.
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 to another. The rule is established by a great variety of cases. [Hanna v. So. St. J. Land Co., 126 Mo. 10, 28 S. W. 652; Barber Asphalt Paving Co. v. Hezel, 138 Mo. 232, 39 S. W. 781; Heman v. Wade, 141 Mo. l. c. 601; Edwards v. M., K. & E. Ry. Co., 148 Mo. l. c. 515-6; Force v. Patton, 149 Mo. 449, 50 S. W. 906; Davis v. Watson, 158 Mo. l. c. 196; Turney v. Sparks, 158 Mo. 366, 59 S. W. 73; Miller v. St. L. & K. C. Ry. Co., 162 Mo. 433, 63 S. W. 85; Porter v. K. C. & N. C. Ry. Co., 175 Mo. 98-9, 74 S. W. 992; Stark v. Martin, 204 Mo. 439, 102 S. W. 1089; Brannock v. Magoon, 216 Mo. 723, 726, 116 S. W. 500; Hill v. Hopson, 221 Mo. 111, 120 S. W. 29; Weston v. Fisher, 264 Mo. 257, 174 S. W. 372; Dillard v. Sanderson, 282 Mo. 438, 222 S. W. 766.]”'
The Nettleton case cites and reviews many other cases to which we refer without again discussing them.
The holding in the Nettleton case has been cited and followed in many recent eases. [Rawlins v Rawlins, 39 S. W. (2d) 367, 368; Missouri Power & Light Co. v. Creed, 325 Mo. 1194, 30 S. W. (2d) 605; Williams v. Mackey et al., 331 Mo. 68, 71, 52 S. W. (2d) 831; Norman v. Construction Co., 319 Mo. 599, 602, 4 S. W. (2d) 1064; Stock v. Schloman, 322 Mo. 1209, 1214, 18 S. W. (2d) 428; Mulik v. Jorganian, 326 Mo. 107, 30 S. W. (2d) 998; Devoto v. Devoto, 326 Mo. 511, 515, 31 S. W. (2d) 805; Hull v. McCracken, 327 Mo. 957, 963, 39 S. W. (2d) 351; Salia v. Pillman, 328 Mo. 1212, 1215, 43 S. W. (2d) 1038; Clevenger v. Odie, 329 Mo. 387, 389, 44 S. W. (2d) 622; Oliver v. Wilhite, 329 Mo. 524, 527, 45 S. W. (2d) 1083; Bingle v. Richmond Heights, 332 Mo. 312, 313, 57 S. W. (2d) 1085; Jones v. Peterson, 335 Mo. 242, 254, 72 S. W. (2d) 76.]
One question determined in all of the cases last above cited was whether or not title to real estate was involved within the meaning of the constitutional provision fixing the jurisdiction of this court. All of the cited cases announce and follow the rule laid down in the Nettleton case, which, in substance is, that the “judgment must adjudicate a title controversy. 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.” There are two recent cases which announce a contrary doctrine to that announced in the Nettleton case, and in other prior and subsequent cases heretofore cited. They are Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S. W. (2d) 691, and Williams v. Maxwell, 82 S. W. (2d) 270. In both cases last above cited the plaintiff’s petition sought a judg
ment for possession of certain real estate. The answer in both cases denied the right of plaintiff to possession of the 'land involved on the ground that defendant was the owner thereof. In neither case did the parties seek a judgment adjudicating the title, and no such judgment was rendered.
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FRANK, J.
Action to recover possession of certain real estate described in the petition. Verdict and judgment for plaintiffs and defendant appealed.
The petition alleges that plaintiffs are entitled to the possession of said real estate, and that defendant unlawfully withholds same from plaintiffs; that defendant committed various acts of waste on said land, planted and harvested one crop, and is growing a second crop thereon, all to plaintiffs’ damage in the sum of $1000. The petition prays for possession of said lands and damages in the sum of $1000.
The answer contains (1) a general denial, and (2) it pleads a state of facts which defendant contends shows him to be the owner of said lands, and for that reason plaintiffs are not entitled to the possession thereof. The prayer of the answer is that defendant be discharged with his costs.
Plaintiffs’ reply put at issue all the affirmative matters alleged in defendant’s answer, and prays for the relief sought in the petition.
The judgment rendered was for plaintiffs for possession of said lands, and one dollar per month for rents and profits from the date of the judgment until possession was delivered to plaintiffs.
Neither party has raised the question of this court's jurisdiction. It is not only our right but our duty to determine that question whether raised by the parties or not.
The decisions in this State are not in complete accord on this question. It is of sufficient importance that it should be settled once for all. Section 12 of Article VI of the Constitution gives this court jurisdiction “in cases involving title to real estate.” In our judgment cases involving title to real estate .within the meaning of the constitutional provision fixing our jurisdiction, are cases in which the judgment sought or rendered will directly affect or operate upon the. title itself. In cases where neither party asks that title be adjudicated, yet it is necessary for the court to ascertain which party has title in order to render the judgment asked for by the pleadings, the title is incidentally or collaterally, and not directly involved, and for that reason we would not have jurisdiction in such a case. This conclusion is supported by many prior decisions of this court. In Davis v. Watson, 158 Mo. 192, 196, 59 S. W. 65, we said:
“This court in construing Section 12 of Article VI of the Constitution, has frequently held that its jurisdiction of a case on appeal is not determined by the fact that the title to real estate has been drawn in question by the answer filed therein, or that a determination of the fact of title to real estate was necessary to the proper consideration of the issues involved in the controversy. It is not enough that title to real estate may be drawn in question, or inquired into during the progress of the case, but the judgment sought or rendered must directly affect or operate upon the title itself.”
In Hilton v. The City of St. Louis, 129 Mo. 389, 391, 31 S. W. 771, we said:
“The Constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. 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.”
Above excerpt was quoted approvingly in the later case of Fischer v. Johnson, 139 Mo. 433, 437, 41 S. W. 203.
In Schroer v. Brooks, 200 S. W. 1068, we said:
“For it is not sufficient to confer jurisdiction on us that the title to real estate may be collaterally or incidentally involved, or that the appellate tribunal may be compelled to consider it in order to reach a decision of the questions actually up for judgment.” (Citing many eases.)
In the recent case of Nettleton Bank v. McGauhey’s Estate 318 Mo. 948, 953, 2 S. W. (2d) 771, 774, we said:
“It follows that to involve title within the meaning of the Constitution a judgment must adjudicate a
title controversy.
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 to another. The rule is established by a great variety of cases. [Hanna v. So. St. J. Land Co., 126 Mo. 10, 28 S. W. 652; Barber Asphalt Paving Co. v. Hezel, 138 Mo. 232, 39 S. W. 781; Heman v. Wade, 141 Mo. l. c. 601; Edwards v. M., K. & E. Ry. Co., 148 Mo. l. c. 515-6; Force v. Patton, 149 Mo. 449, 50 S. W. 906; Davis v. Watson, 158 Mo. l. c. 196; Turney v. Sparks, 158 Mo. 366, 59 S. W. 73; Miller v. St. L. & K. C. Ry. Co., 162 Mo. 433, 63 S. W. 85; Porter v. K. C. & N. C. Ry. Co., 175 Mo. 98-9, 74 S. W. 992; Stark v. Martin, 204 Mo. 439, 102 S. W. 1089; Brannock v. Magoon, 216 Mo. 723, 726, 116 S. W. 500; Hill v. Hopson, 221 Mo. 111, 120 S. W. 29; Weston v. Fisher, 264 Mo. 257, 174 S. W. 372; Dillard v. Sanderson, 282 Mo. 438, 222 S. W. 766.]”'
The Nettleton case cites and reviews many other cases to which we refer without again discussing them.
The holding in the Nettleton case has been cited and followed in many recent eases. [Rawlins v Rawlins, 39 S. W. (2d) 367, 368; Missouri Power & Light Co. v. Creed, 325 Mo. 1194, 30 S. W. (2d) 605; Williams v. Mackey et al., 331 Mo. 68, 71, 52 S. W. (2d) 831; Norman v. Construction Co., 319 Mo. 599, 602, 4 S. W. (2d) 1064; Stock v. Schloman, 322 Mo. 1209, 1214, 18 S. W. (2d) 428; Mulik v. Jorganian, 326 Mo. 107, 30 S. W. (2d) 998; Devoto v. Devoto, 326 Mo. 511, 515, 31 S. W. (2d) 805; Hull v. McCracken, 327 Mo. 957, 963, 39 S. W. (2d) 351; Salia v. Pillman, 328 Mo. 1212, 1215, 43 S. W. (2d) 1038; Clevenger v. Odie, 329 Mo. 387, 389, 44 S. W. (2d) 622; Oliver v. Wilhite, 329 Mo. 524, 527, 45 S. W. (2d) 1083; Bingle v. Richmond Heights, 332 Mo. 312, 313, 57 S. W. (2d) 1085; Jones v. Peterson, 335 Mo. 242, 254, 72 S. W. (2d) 76.]
One question determined in all of the cases last above cited was whether or not title to real estate was involved within the meaning of the constitutional provision fixing the jurisdiction of this court. All of the cited cases announce and follow the rule laid down in the Nettleton case, which, in substance is, that the “judgment must adjudicate a title controversy. 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.” There are two recent cases which announce a contrary doctrine to that announced in the Nettleton case, and in other prior and subsequent cases heretofore cited. They are Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S. W. (2d) 691, and Williams v. Maxwell, 82 S. W. (2d) 270. In both cases last above cited the plaintiff’s petition sought a judg
ment for possession of certain real estate. The answer in both cases denied the right of plaintiff to possession of the 'land involved on the ground that defendant was the owner thereof. In neither case did the parties seek a judgment adjudicating the title, and no such judgment was rendered. The judgment below in both eases was for possession. These cases hold that since it was necessary for the court to determine which party had legal title to the real estate in order to determine which was entitled to possession, title to real estate was involved and this court had jurisdiction for that reason. The judg ment sought in these cases was for possession only. Neither party asked that title be adjudicated. The fact that it was necessary for the court to determine which party owned the land in order to correctly decide the question actually up for judgment, did not involve title to real estate in the constitutional sense. It might well be that the facts alleged in the pleadings would have authorized an adjudication of the title as well as a judgment for possession had such relief been asked, but since neither party asked that the title controversy be settled, it cannot now be said that title to the real estate is involved in the constitutional sense. We do not agree with the holding in Tooker v. Missouri Power & Light Co., and Williams v. Maxwell, supra, on the question of jurisdiction. They, as well as other cases holding likewise, are overruled. The correct rule is well stated in Davis v. Watson, 158 Mo. 192, 194-5, 59 S. W. 65. We there said:
“While recognizing the proposition that the character of a suit is not always to be determined by the prayer of the petition, but that the court may look into the entire contents of the pleadings to ascertain what relief is really sought, or what remedy is asked to be applied, it is equally as true, that when a remedy has been asked consistent with the facts pleaded and the court has applied it, and given judgment in accordance therewith, it will not be permitted of a defendant in that proceeding against whom a judgment has been rendered to urge that under the facts pleaded a different remedy might have been applied, or a more extended relief granted, and because of that fact shift the jurisdiction of the cause, on appeal, to a court not having cognizance of the cause, as it was tried and determined. The question for consideration here, is not what relief plaintiffs under the facts disclosed by their petition might have sought, but what remedy did they ask to have applied; what judgment did they ask, that was authorized by their petition; and what character of a case was tried and determined by the trial court? ... ”
In the case at bar, plaintiffs’ petition asked a judgment for possession only. Thé answer pleads ownership of the land, not for the purpose of having title adjudicated, but as a defense to plaintiffs’ alleged cause of action for possession. The prayer of the answer is that defendant be discharged with his costs. . The judgment rendered did not adjudicate the title. It was a judgment for possession
and one dollar per month for rents and profits from the date of the judgment until possession is restored to plaintiff. In this state of the record title to real estate is not involved within the meaning of the Constitution.
The cause should be and is transferred to the Kansas City Court of Appeals.
All concur, except
Says, J.,
who dissents in separate opinion.