Barnhart v. Campbell

• Decision Date: 31 October 1872
• Citation: 50 Mo. 597
• Parties: OLIVELLA BARNHART, BY HER GUARDIAN, S. E. ELLIS, Respondent, v. JOHN H. CAMPBELL, Appellant.
• Court: Missouri Supreme Court

50 Mo. 597

OLIVELLA BARNHART, BY HER GUARDIAN, S. E. ELLIS, Respondent,

v.JOHN H. CAMPBELL, Appellant.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Adair Circuit Court.

Harrington & Cover, for appellant.

I. Every conveyance of real estate hereinafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms. (R. C. 1855, p. 355, § 2.)

II. A deed by a tenant in common, purporting to convey in severalty, is a good conveyance of the grantor's undivided part within the boundaries of the conveyance. (Lessee of White v. Sayer, 1 and 2 Ohio, 302.)

III. Levy and sale on execution, of the interest of a tenant in common, as by specified metes and bounds, is good for his undivided portion within such boundaries. (Treon's Lessee v. Emerick, 6 Ohio, 398.)

IV. A tenant in common can convey a part of his undivided interest in the whole land, or his whole undivided interest in a part of the land. (7 Ohio, 132.)

De France & Halliburton, for respondent.

One co-tenant cannot convey a portion of the general estate. (1 Washb. 417, 432, § 5; Souter v. Porter, 27 Me. 405; Great Falls Co. v. Worcester, 15 N. H. 412.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment. Under the instructions of the court, the plaintiff recovered a judgment for the possession of the lands in controversy.

The main point presented by the record is whether one tenant in common can convey a part of the common lands by metes and bounds, in this State, without the concurrence of his co-tenant. The conveyances under which the defendant held were of this character, and were made in 1865 and 1866. The court below held that these deeds were void as against the plaintiff, who was heir of the co-tenant.

The question is a new one in this State, and is now for the first time before this court; at least no decision has been referred to, and I know of none where this point has been directly passed on by this court. In Prim et al. v. Walker, 38 Mo. 94, this court held that when several persons are tenants in common of separate and distinct parcels of lands, one of the tenants may convey all his undivided interest in any one of the distinct parcels. The precise question now under consideration did not arise in that case and was not passed on by the court, although Judge Holmes, arguendo, in delivering the opinion of the court, seemed to concede that a conveyance by a tenant in common of a portion of the common land, by metes and bounds, would be void as to his co-tenant. This was a mere obiter dictum and cannot be regarded as authority in this case. In McCaul v. Kirkpatrick, 46 Mo. 434, although the counsel for appellant made the point in his brief, the record did not present it, and it was not touched or referred to by the court. So the question is still open for adjudication. In England, and in many of our sister States, the law seems to be well settled that such a conveyance is void as to the co-tenant who does not consent.

The only reason given is that...