#### REECE et ux. v. VAN GILDER.

No. 21859.

Kansas City Court of Appeals. Missouri.

Feb. 1, 1954.

Not to be published in State Reports.

Wallace Cooper, St. Louis, Garrett R. Crouch, Warrensburg, for appellant.

Gayles R. Pine, John H. Mittendorf, War-rensburg, for respondents.

SPERRY, Commissioner.

Plaintiffs, David G. and Elsie H. Reece, husband and wife, sued defendant Estella A. Van Gilder. They alleged the making of a verbal contract with defendant whereby plaintiffs agreed to expend large sums of money on defendant’s 320 acre farm, as follows: To pay off a mortgage, interest, and back taxes thereon, to build a house, to furnish money for farm operations and supplies, and to furnish labor and personal services; that, in consideration therefor defendant verbally promised to convey to them and defendant a fee-simple title to said 320 acre farm by joint deed, with right of survivorship among them. They further alleged plaintiffs’ compliance with the terms of' the contract; that defendant had breached same; that plaintiffs elected to rescind; and that they had no adequate remedy at law.

The prayer was “for this court of equity to grant to plaintiffs * * * a special lien against the above described real estate for all the amounts found due plaintiffs and expended by them on said premises * * *, amounting to the total sum of $13,425.55, * * *, and that said special lien be ordered foreclosed and said real estate sold for the payment of said lien * * * and for such other and further relief, * * * as to the court shall seem meet and proper in the premises.”

*894Defendant answered admitting that plaintiffs paid off a certain mortgage, in the amount of $3,000, together with interest, hut alleged that they did so solely as volunteers and not pursuant to any contract, but as a gift to defendant; admitted that plaintiffs had constructed a house on the premises but did not know the amount paid out by them in that behalf, and alleged they did so under a contract whereby the house was to become part and parcel of the real estate, with privilege to plaintiffs to live in same for and during their natural lives; denied that plaintiffs had performed labor of the value of $3,000, as alleged by plaintiffs, or of any other value; denied that they'had advanced or paid $600 cash in addition to the above sums; and prayed that the petition be dismissed and defendant adjudged to be the absolute owner of the real estate described therein, subject to the right of plaintiffs to occupy the house during their natural lives.

This is an equity case, Goldman v. Ashbrook, Mo.App., 262 S.W.2d 165, 168; and, on appeal we consider it *de*novo, make our own findings of facts and conclusions of law, and render or direct the rendition of such judgment as equity and justice may require. Maas v. Dreckshage, Mo.App., 244 S.W.2d 397, 400.

The evidence tended, generally, to support plaintiffs’ compliance with its terms, defendant’s breach, and that plaintiffs expended cash sums under said contract, in excess of $7,500.

The court found, adjudged and decreed as follows:

> “1. That plaintiffs advanced to defendant the sum of Six Hundred ($600.00) Dollars in cash, and that plaintiffs paid the sum of Two Thousand and Seventy-Five ($2075.00) Dollars on May 5th, 1949, and One Thousand and Twelve Dollars and Fifty cents ($1012.50) on June 19th, 1950, to the Farmers Commercial Bank of Holden, Missouri, to discharge and satisfy deed of trust upon the,real estate described in plaintiffs’ petition and situate in Johnson County, Missouri, to-wit:

> “The West Two-thirds (W %rds) of the East Three Fourths (E %ths) of Section Nine (9), Township F.orty-four (44), Range Twenty-eight (28), all in Johnson County, Missouri; that plaintiffs are entitled to a lien upon said real estate for said sums totaling Three Thousand, Six Hundred and Eighty-Seven Dollars and Fifty Cents ($3687.50), with interest, on Two Thousand and Seventy-five ($2075.00) Dollars at Five (5%) per cent from June 19th, 1950, making the total sum as of this date of Four Thousand, One Hundred and Seven Dollars and Ninety-Nine Cents ($4107.99) due the plaintiffs herein.

> “2. That the plaintiffs are entitled to a life estate for the lifetime of both of them in and to the dwelling house constructed by plaintiffs upon the . above described real estate, with rights to an easement for plaintiffs lifetime to the use of water from the well where defendant resides, and to pump or pipe the same from said well to plaintiffs’ residence on said premises.

> “It is therefore ordered, adjudged and decreed by the Court that plaintiffs have and they are hereby adjudged and decreed to have a special lien upon said described real estate for the sum of Four Thousand, One Hundred and Seven Dollars and Ninety-Nine Cents ($4107.99) and plaintiffs are hereby granted a life estate in and to the dwelling house erected upon said premises by plaintiffs, and plaintiffs are hereby granted an easement over and along said premises from said dwelling house to well at the residence of defendant on said premises for water rights for the purpose of laying pipe therefor, and to use water from said well during the lifetime of the plaintiffs ; that a special execution issue out of this Court for the purpose of foreclosing and satisfying said special lien of plaintiffs on said real éstate, and that said real estate be sold by the Sheriff of Johnson County, Missouri, under special execution for the purpose of paying and satisfying said lien, and the costs of this action, said costs being taxed against the defendant.”

Defendant appealed.

*895We lack jurisdiction to entertain this appeal. Plaintiffs sought a money judgment for all sums paid out by them under the alleged contract; but they also asked for other and equitable relief. On one phase of the case plaintiffs received a money judgment for $4,107.99 and, on the other phase, based on their claim that plaintiffs expended in'excess of $5,000 in:constructing a house on the farm under a contract whereby they were to receive joint title to the 320 acre farm, with right of sur-vivorship, they were granted a life estate in the house and an easement over the lands to the well at defendant’s residence, with the right to take water from the well during their natural-lives.

At the time the contract was made all parties understood and agreed that the house to be constructed thereunder would be and become part and parcel of the realty. No one now claims to the contrary. Therefore, the decree grants to plaintiffs a life estate in realty. An estate for life in land is a free hold estate. 21. C.J. 917. “The term real estate means an estate in fee or for life in land, *. * See also 31 C.J.S., Estates, § 7. Kent’s Commentaries 401, 14th Edition; Orchard v. Wright-Dalton-Bell-Anchor Store Company, 225 Mo. 414, 440, 125 S.W. 486.

We have no jurisdiction in cases involving title to real estate. Article V, §§ 3 and 13, V.A.M.S. Constitution of Missouri.

The cause should be transferred to the Supreme Court.

BOUR; C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The cause is transferred to the Supreme Court.

All concur.