Rich v. Donovan

72 Mo. App. 571, 1897 Mo. App. LEXIS 221

Opinion

Bond, J.

The petition seeks to recover for the alleged conversion of four hundred and thirty and seventeen twenty-seconds perches of foundation stone situated on the real estate of one of the defendants. This defendant answers that she purchased said real estate under a warranty deed after the rock sued for had “been built into and annexed to same as the foundation of certain buildings.” The. reply admits these allegations of the answer, and sets up in avoidance that prior to the acquisition by defendant of title to said land certain mechanic liens had been established against it for the value of the foundation stone, and that these were released upon an agreement with the agent of defendant that the rock in question might be severed and removed from the freehold, which agreement it is averred was subsequently prevented by defendant’s agents.

It is apparent from these pleadings that the issue joined involves a title to real estate. It being conceded by the pleadings that the stone had become a part of the realty, the only question left is, whether defendant parted with title thereto by virtue of the alleged oral agreement to that effect. The determination of this question belongs, under the constitution, to the supreme court. The cause will therefore be transferred to that court.

All concur.