Lee v. Lee

Decision Date12 March 1901
Citation61 S.W. 630,161 Mo. 52
PartiesLEE et al. v. LEE et al.
CourtMissouri Supreme Court

2. In partition, a decree in a former partition was pleaded as establishing the right of certain defendants to a certain part of the land, but no other claim was made under it. Held, that a claim of homestead not otherwise set up in the answer could not be based on the fact that homestead was set off in the first decree.

3. Ejectment is not a condition precedent to a suit for partition by persons claiming an interest in land as heirs of a common ancestor.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Petition by Peter Lee and others against Mary Ann Lee and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a statutory partition proceeding. Plaintiffs claim to be children and heirs of Handy Lee. Two of defendants are his widow and child, and the other two are Chaney Lee, who is the owner of an undivided half of the land, and Robert E. Lee, her husband. The real contest is between the plaintiffs, on the one side, who claim to be children of Handy Lee, deceased, and his widow, Mary Ann, and Andrew Lee, her child, on the other side. The principal facts are contained in an agreed statement, from which it appears: That Handy Lee, Margaret, and Mary Ann were negro slaves from birth, owned by a resident of this state, and have always resided here. In 1846 Handy Lee and Margaret, with the consent of their master, were married, and lived together as husband and wife until 1856. Of that union the plaintiffs Peter and Rachel were the offspring, born in 1850 and 1852. In 1856 Handy, with his master's consent, separated from his wife Margaret and married the defendant Mary Ann. The defendant Andrew Lee is the result of the second marriage, born in 1861. In August, 1865, after they were emancipated, Handy Lee and Mary Ann Lee were married in due form, and they lived together as husband and wife until the death of Handy in 1887. At the time of his death Handy Lee and Chaney Lee owned the land described in the petition, but they had some time before made a parol partition of it between themselves, whereby the north half was allotted to Handy and the south half to Chaney, and they both acted on that partition up to Handy's death. In addition to the agreed statement, defendants introduced in evidence, over plaintiffs' objection, the records of the court in another suit, showing that in 1891 Mary Ann and her son and the plaintiff Peter united as plaintiffs in a partition suit against Chaney and her husband, the result of which was that the south half of the land was set off to Chaney, and the north half to Mary Ann, for life, as a homestead, and at her death to go to Peter and Andrew, — each an undivided half, — in fee. But Rachel was left out of that suit, and the proceeding did not dispose of her interest. Now, in the suit at bar, Peter and Rachel are plaintiffs, and seek a new partition. The court, by its decree in this case, allotted the south half to Chaney and the north half to the widow and heirs of Handy, — that is, one-third for life to the widow, as her dower, and one-third in fee to each of the heirs, Peter, Rachel, and Andrew, subject to the widow's dower, — and finding that the north half was not susceptible of partition in kind among the parties interested, without prejudice, ordered that it be sold for partition, and the proceeds divided according to their interests so adjudged. From the decree the defendants appeal. No complaint is made by the appellants of the allotment to Chaney, but they say that the plaintiffs, being the children of a marriage of slaves, are illegitimate, and inherit no interest in the land.

John E. Wait, Robt. Miller, and Kitt & Kitt, for appellants. J. M....

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10 cases
  • Barker v. Hayes
    • United States
    • Missouri Supreme Court
    • February 1, 1941
    ...that Daisy Hayes is the sole heir of Mathew Spears (Sec. 317, R.S. 1929, Mo. Stat. Ann., p. 201; Sec. 4477, R.S. 1889; Lee v. Lee, 161 Mo. 52, 56(I), 61 S.W. 630, 631 (1); Erwin v. Nolan, 280 Mo. 401, 415, 217 S.W. 837, 842[12]); that Mathew Spears died leaving a homestead, a widow and an h......
  • Keen v. Keen
    • United States
    • Missouri Supreme Court
    • November 23, 1904
    ...that the relation between Eli Keen and Phoebe Keen was unlawful and the defendant was the issue of such unlawful relationship. Lee v. Lee, 161 Mo. 52; Green Green, 126 Mo. 17; Gates v. Seibert, 157 Mo. 254; Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, ......
  • Lee v. Lee
    • United States
    • Missouri Supreme Court
    • March 12, 1901
  • Guy v. Mayes
    • United States
    • Missouri Supreme Court
    • June 20, 1911
    ...not by their pleadings directly or indirectly claim. In fact, there is respectable authority that this cannot be done. In the case of Lee v. Lee, 161 Mo. 52, loc. cit. 58, 61 S. W. 630, we ruled that in a partition suit a homestead interest in lands could not be assigned to a widow who in h......
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