Anderson v. Ragan

• Decision Date: 30 June 1891
• Citation: 16 S.W. 946,105 Mo. 406
• Parties: Anderson et al. v. Ragan, Appellant
• Court: Missouri Supreme Court

16 S.W. 946

105 Mo. 406

Anderson et al. v. Ragan, Appellant

Supreme Court of Missouri, Second Division

June 30, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Johnson & McNeil and Burr & Burr for appellant.

(1) Equity courts have jurisdiction of partition cases. 1 Story Eq. Jur., secs. 646, 658, and cases cited; Saving Inst v. Collonius, 63 Mo. 290; Edwards v. Phillips, 73 Mo. 60; Spitz v. Wells, 18 Mo. 468. (2) And the chancellor's finding of "fact" is reviewable in the appellate court. Hardware Co. v. Wolters, 91 Mo 484; State ex rel. v. Hurlstone, 92 Mo. 332; Murphy v. Murphy, 1 Mo. 741; Bender v Markle, 37 Mo.App. 242. (3) And the appellate court, in such cases, will weigh the evidence to see that substantial justice is done to all the parties to the suit. Heirs of Hanna v. Hanna, 46 Mo. 314; Pomeroy v. Allen, 60 Mo. 530; Green v. Walker, 99 Mo. 68. (4) The appellant, under the evidence in this case, is injured by the allotment made in the partition of the seventy-five and three-tenths acres. (5) The injury is of such a nature and extent as will justify the court in setting aside the commissioners' report.

F. L. Wilkinson for respondents.

(1) The proceeding to partition real estate is statutory in this state, and it is but an ordinary civil action to be tried by the court. R. S. 1879, ch. 56; R. S. 1889, ch. 122; Green v. Walker, 99 Mo. 168. (2) This being a proceeding at law, no instructions asked or given on either side, no objections to the admittance or rejection of testimony, no exceptions made or saved to the rulings of the court, or to the record proper, there is nothing for review, and the appellant has no standing in this court. State v. Miller, 93 Mo. 263; State v. Havens, 95 Mo. 167; State v. Rambo, 95 Mo. 462; Rambo v. Campbell, 8 Mo.App. 582; McCord v. Doniphan, 21 Mo.App. 92; State v. Boyne, 88 Mo. 604; State v. Reed, 89 Mo. 168. (3) The fact that an equitable defense may be pleaded to an action at law will not have the effect of changing a common-law action into a suit in equity, but, even in equity, the supreme court will defer largely to the opinion of the trial court. Wolf v. Schaeffer, 74 Mo. 154; Carter v. Prior, 78 Mo. 222; Erskine v. Loewenstein, 82 Mo. 301; Mathias v. O'Neil, 94 Mo. 520; Hard v. Foster, 98 Mo. 308. (4) The confirmation or rejection of the report of the commissioners in partition proceedings rests mainly in the discretion of the trial court, and, except for the most cogent reasons, it will not be disturbed or reversed by the supreme court. Pomeroy v. Allen, 60 Mo. 530. (5) Where no instructions are asked or given and no questions of law presented as to the rulings of the trial court, the supreme court will not undertake to weigh the evidence to determine whether it justifies the finding therein, or reverse its judgment upon "simply a conflict of evidence between witnesses." Altum v. Arnold, 27 Mo. 264; Easly v. Elliott, 43 Mo. 289; Hamilton v. Boggess, 63 Mo. 251; Pike v. Martindale, 91 Mo. 268; Mead v. Spalding, 94 Mo. 43.

OPINION

Gantt, P. J.

Joseph C. Anderson died intestate at his residence, near Big Blue River, about six miles east of the center of Kansas City, in Jackson county, Missouri, in 1884, owner of the tract of land containing seventy-five and three-tenths acres; he left as his only heirs at law seven children: Jerome, Mattie, George F., Emily, Charley, Ella and William, the last four of whom are infants. The estate was duly administered, and Jerome sold his interest in the realty to S. C. Schaefer, who subsequently transferred it to McKinney and Munford.

At the January term, 1888, of the Jackson county circuit court, George F. and Mattie began proceeding for partition of said lands against all the other heirs, also, the assignees of Jerome's interest and all others having an interest in the lands. All the defendants, including guardian "ad litem," were before the court by its process, and commissioners were appointed to make the partition, which was done. Said commissioners laid out streets and avenues and divided each tract into seven different lots, and numbered them from 1 to 7, and returned a plat of each tract with their report to the court. In the seventy-five and three-tenths-acre tract, lot 1 is allotted to McKinney and Munford, lot 2 to Charley Anderson, lot 3 to Emily Anderson, lot 4 to George F. Anderson, lot 5 to Mattie Anderson, lot 6 to William Anderson, and lot 7 to Ella Anderson. Each lot contains nine and three-tenths acres, and is valued at $ 27,900; the whole estate partitioned $ 253,260. A street or avenue encircles the whole tract of seventy-five and three-tenths acres. Twelfth street on the south, Anderson avenue on the east and north, Piedmont avenue on the west, and Ninth street passes through the land, separating lot 1 from the other lots. Each lot fronts upon a street or avenue, and lot 1 is bounded on all sides with a street or avenue. A correct plat was filed by the commissioners with their report, and filed with transcript of the case here.

Alexander Ragan, who brings this case here by appeal in some way not disclosed in this record, claims to be the owner of Jerome Anderson's share of the estate of his father in these lands. It seems to be conceded in the argument that Alexander Ragan had purchased the interest of Wm. McKinney and Morrison Munford, and he was accordingly recognized as such owner by the circuit court of Jackson county, and permitted to appear by counsel and file exceptions to the report of the commissioners, as follows:

First. Because the allotment made by the commissioners is unfair, and does not divide the lands proportionate in value to the several interests involved.

Second. Because the interests of all p...