Atkinson v. Brady

• Decision Date: 14 February 1893
• Parties: ATKINSON v. BRADY et al.
• Court: Missouri Supreme Court

21 S.W. 480

114 Mo. 200

ATKINSON v. BRADY et al.

Supreme Court of Missouri, Division No. 2.

February 14, 1893.

PARTITION BY OWNER OF CURTESY.

Rev. St. 1879, § 3339, provides that where lands are held in "joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower," any one interested therein may file a petition for the admeasurement of any dower therein, and for partition of the remainder. Held, where plaintiff acquired the curtesy interest of the husband in certain real estate, together with an undivided one fifth in the remainder, that he may maintain partition against the other owners of the estate in remainder.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Frank M. Atkinson against W. H. Brady and others. Judgment for defendants. Plaintiff appeals. Reversed.

Stauber & Crandall, for appellant. Hall & Pike, for respondents.

BURGESS, J.

This is an action in partition. The petition shows that Nellie Brady died in 1889 seised of certain real estate in Buchanan county, and left surviving her a husband and five children; that plaintiff succeeded to the curtesy interest of the husband and the share of one of the children of deceased; sets out the interests of the other defendants; and prays for partition. Defendants demurred to the petition on the ground that plaintiff, being the owner of the curtesy and the undivided one-fifth interest in the remainder only, was not entitled to have the land partitioned. The demurrer was sustained, and, the plaintiff declining to plead further, judgment was rendered for defendants, from which plaintiff appeals to this court.

It will be observed from the foregoing statement that the sole question presented in this case for our consideration is whether the plaintiff, being the owner of the curtesy, together with an undivided one-fifth interest in the remainder, is entitled to have partition of such estate as against the other defendants, owners of the estate in remainder. Section 3339, Rev. St. 1879, provides that when lands, tenements, or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, may file petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, and partition of the remainder. While, by the terms of this section of the...