Acord v. Beaty

• Decision Date: 20 June 1912
• Parties: EVA MAY ACORD v. EVELYN BEATY et al., Appellants
• Court: Missouri Supreme Court

148 S.W. 901

244 Mo. 126

EVA MAY ACORD v. EVELYN BEATY et al., Appellants

Supreme Court of Missouri, Second Division

June 20, 1912

Appeal from Saline Circuit Court. -- Hon. Samuel B. Davis, Judge.

Reversed.

Frank Rigney and Robert M. Reynolds for appellants.

(1) Parol partition, followed by possession, where all the parties derive title from a common source is valid. Bompart v. Roderman, 24 Mo. 385; Asken v Barnett, 50 Mo. 506; Nave v. Smith, 96 Mo. 596; Sutton v. Porter, 119 Mo. 100; Gulick v Huntley, 144 Mo. 241; Whitsett v. Wamack, 159 Mo. 14; Starr v. Bartz, 219 Mo. 47. Such partition passes the equitable title, and the court will vest the legal title in the parties entitled thereto. Sutton v Porter, 119 Mo. 100; Gulick v. Huntley, 144 Mo. 241. (2) Nor does the fact that the estate is one in which there is a contingent remainder, bar the right to a partition, such estates are alienable under law, and are therefore the subjects of partition. Preston v. Brent, 96 Mo. 552; Reinders v. Koppleman, 68 Mo. 502; Sikemeir v. Galvin, 124 Mo. 367. (3) Such partitious binds minors and those under coverture; in such cases the life tenant represents the remainderman. The only requirement is that the partition, be fair, equitable and just. Jenkins v. Fahey, 73 N.Y. 355; Mead v. Mitchel, 17 N.Y. 210; Sutton v. Portor, 119 Mo. 100; Gulick v. Huntley, 144 Mo. 241; Sparks v. Clay, 185 Mo. 410. 1 Story's Eq. Jur. (12 Ed.), 656 A.

Duggins & Duggins for respondent.

(1) The partition by the life tenant does not make title. No title passed by the deed or contract. The parties do not take title by purchase. It is simply an adjustment of the boundaries of such lands as they own as co-tenants and does not confer any new title. Whitsett v. Wamack, 159 Mo. 23; Palmer v. Alexander, 162 Mo. 131; Snyder v. Elliott, 171 Mo. 363; Sharp v. Stewart, 181 Mo. 529. By the deed the parties lost nothing and acquired nothing except defined boundaries to the land they previously held in common. Whitsett v. Wamack, 159 Mo. 24. (2) The defendants cannot in equity and good conscience compel the plaintiff to accept the land allotted to her father, when the life tenants and remainderman had no legal title to one hundred acres of the real estate which the life tenants attempted to partition. Twenty acres of this land was allotted to plaintiff's father and he conveyed it by warranty deed fifteen years before he died. It would be inequitable and unjust to compel plaintiff to bring suits in ejectment to try and recover the twenty acres. The deed or contract in partition did not make title. (3) The first case cited by counsel for defendants, under point one, in our opinion conclusively settles the question adversely to appellant's contention. Bompart v. Roderman, 24 Mo. 399; Elliott v. Delaney, 217 Mo. 29. (4) We respectfully submit to the court that we have carefully examined the authorities cited by appellant's counsel and we fail to find any case where a remainderman was held to be bound by a parol partition of the life tenant. All the cases cited and referred to by counsel for appellant referring to the validity of parol partition is where the parties are sui juris. And where the remaindermen or reversioners are held bound, are in suits in partition brought under the statute.

ROY, C Blair, C., dissents.

OPINION

ROY, C.

This is an ejectment brought in the circuit court of Saline county, August 18, 1905, for an undivided fifth of about 87. 1/2 acres of land. There was judgment for plaintiff, and defendants appealed.

There is no dispute about the facts, which are as follows: On July 7, 1871, Judiah E. Higby, being the owner of five hundred and forty-two acres of land in that county, executed a warranty deed to Hannah Phillips, George A. Phillips, Ellsworth Phillips, Evelyn Phillips (now Beaty, a defendant), and Elmore Phillips (the father of plaintiff).

Said conveyance was during the natural lives of the grantees, the remainder to their heirs and assigns forever, except the interest of the said Hannah Phillips, at whose death her fifth interest was to be divided among her cograntees. By mistake a hundred acres of the land then owned by Higby was omitted from the description. The land actually described by numbers in the deed only amounted to four hundred and forty-two acres. But the deed called for five hundred and forty-two acres, and the grantees at once went into possession under that deed of the whole five hundred and forty-two acres.

On March 27, 1879, the grantees in that deed executed a mutual partition deed of all the land. That deed contained the following recital:

"That whereas, one Judiah E. Higby by deed dated July 7th, 1871, and recorded in Book 18 at page 553, in the office of the recorder of deeds of and for Saline County, State of Missouri, did convey to the said Hannah Phillips, George A. Phillips, Elmore Phillips, Ellsworth Phillips, and Evelyne Phillips, (now Evelyne Beattie) certain tracts of land being and lying in Saline County, Missouri, and described as follows:" (here followed a description of all the land amounting to 542 acres).

Then followed this language: "Which said conveyance was to the said grantees during their natural lives and to their heirs and assigns forever except the interest of said Hannah Phillips at whose death her one-fifth interest is to be divided between said George Allen Phillips, Elsworth Phillips, Elmore Phillips and Evelyne Phillips, and their heirs, which said deed is here referred to and made a part hereof."

In that partition Elmore Phillips got an undivided third of a detached sixty acre tract and also ninety acres. Thirty acres of the ninety acres were a part of the land not described in the Higby deed. The defendant Evelyn Beaty (Phillips) got 117.50 acres which were described in the Higby deed. The fairness of that partition is practically conceded, except as to the effect of the fact that thirty acres of the land allotted to Elmore Phillips were omitted from the description in the Higby deed. That partition deed contained covenants of mutual warranty. The parties at once took possession separately of the parcels respectively allotted to them.

On May 29, 1882, Elmore Phillips conveyed the ninety acres allotted to him to Henry C. Sparks by warranty deed for the expressed consideration of $ 2250.

Elmore Phillips died July 18, 1897, leaving plaintiff, his child, as his only issue. She was born February 8, 1882, and was married to her present husband October 4, 1899.

In 1904, plaintiff recovered judgment in ejectment against Edward Staub and others for an undivided fifth of portions of the Higby land which were not allotted to her father or to Evelyn Phillips. On August 14, 1905, plaintiff, by warranty deed conveyed to Edward Staub the undivided fifth of two hundred and fifty acres of the Higby land including the ninety acres, which had been allotted to her father. That deed contained these words, "It being intended herein to convey the entire interest of the said Eva May Acord in and to said real estate."

The answer prayed for a decree declaring that the title to said omitted hundred acres be declared to have vested in the parties in accordance with the Higby deed.

OPINION.

I. When the partition deed was made in 1879, the parties had no paper title to the omitted hundred acres. Ten years had not elapsed, and they had no title by the Statute of Limitations. They were the owners of it in equity as against the world and no one was disputing their right. It was intended to be included in the deed, but was omitted by mistake. The partition deed recited the Higby deed and made it a part of the partition deed. More than that, the partition deed stated that the Higby deed conveyed the hundred acres, and that such conveyance was for life and then to the heirs of the grantees, except as to the share of Hannah Phillips which went on her death to her cograntees. When Elmore Phillips conveyed to Sparks in 1882, Sparks and all claiming under him were affected with notice of the contents of the partition deed and of the Higby deed and with notice that the Higby deed was intended to convey the omitted hundred acres. Such being the case, the plaintiff, at the death of her father, if she chose to abide by the partition, was the absolute owner, and entitled to the possession of all the land that was allotted to her father in the partition.

No one would have had any defense to her claim. Her father had only a life estate therein, and he could convey no more than he had. His rights were fully set out in the partition deed. Thus we see that the fact that the hundred acres were omitted from the Higby deed cuts not the slightest figure in the case. It also follows that the partition was a fair one to all concerned.

II. In Reinders v. Koppelmann, 68 Mo. 482, it was held that in a partition suit the parties not in esse are represented by those who hold subject to their rights, and that such persons not in esse are bound by the parties.

That case did not base the ruling on our partition statute, but on the contrary the court said: "Apart from any statute, the English courts had no hesitation in decreeing partition in such cases. In Wills v. Slade, 6 Ves. Ch. 498, it was held by Lord Eldon that 'it was no objection to a partition that other persons may come in esse and be entitled; for if so, in every case where there is a settled estate with remainder to persons who may come in esse, there never can be a partition.' In Gaskell v. Gaskell, 6 Sim. Ch. 643, it was held that a tenant for life of an undivided share of an estate, with remainder to his unborn son in tail, may file a bill for partition, and the decree would be binding on the sons when in esse."

The case of Sparks v. Clay, 185 Mo. 393...