Bayha v. Kessler

• Decision Date: 31 October 1883
• Parties: BAYHA v. KESSLER, et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 555

BAYHA

v.KESSLER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Crawford Circuit Court.--HON. V. B. HILL, Judge.

AFFIRMED.

A. McElhinney for appellants.

Smith & Krauthoff with J. R. Webb for respondents.

MARTIN, C.

This was a suit for partition of 320 acres of land. The plaintiff bringing the suit alleged that he was entitled to an undivided 13-30 of the tract, and that he held it in trust to the separate use of Margarette English; that Kessler was entitled to 19-60, McElhinney to 1-6, Hopper to 1-36, and Grant to 1-18. It was also claimed in the petition, that the plaintiff had placed valuable improvements on a portion of the tract at her own cost, and that in the partition, an account of the same should be taken and their value allowed to her.

The defendants, in their joint answer, denied the allegations of interest and estate as stated in the petition; and McElhinney, answering further, in his own behalf laid claim to the 13-30 alleged in the petition as belonging to plaintiff. He claimed it by virtue of a purchase at execution sale against one C. H. English, the former owner of it; and although he admits the execution, under which he purchased, was issued on a judgment rendered long after English had conveyed the land to plaintiff, he nevertheless insists that the sale to plaintiff was void as against creditors, averring that it was without consideration and in secret trust for the grantor. The equitable right of McElhinney, as set out in his answer or cross-bill, was denied by the plaintiff, and English was made a party to the suit. He filed a disclaimer of any interest in the land.

The case was tried upon the documentary and oral evidence appearing in the bill of exceptions, and a decree of partition was rendered, awarding to plaintiff the 13-30 claimed in the petition. Commissioners were appointed who reported that they had set apart to plaintiff 120 acres of the tract as representing the 13-30 of the same, and that the improvements of the plaintiff were upon the portion so set apart. They also reported that the balance of the tract could not well be partitioned among the defendants, according to their respective interests and estates, and accordingly they recommended a sale thereof and a division of the proceeds among the owners thereof. This report was confirmed against the objections and exceptions of appellants, and judgment was entered in accordance with it, from which the defendants have appealed.

I do not deem it necessary to allude to the evidence or pleadings, except in so far as they are involved in the objections urged by the appellants before us as ground of reversal. These objections I will now consider.

1. A DECREE IN PARTITION.

The appellants complain that the record fails to disclose any adjudication of the issues raised by the cross-bill of McElhinney. In this position I think the appellants are mistaken. The issue raised by the cross-bill was whether or not the 13-30 of the land claimed by plaintiff belonged to McElhinney by virtue of his purchase at execution sale as the property of the former owner. His right to it depends upon the facts of a fraudulent transfer and secret trust pleaded in his cross-bill and denied by plaintiff's replication. The court, in its interlocutory decree, does not specifically allude to the facts relating to the impeachment of plaintiff's title, but it most certainly disposes of the issue raised by such facts, in favor of the plaintiff, and against the defendants, or any of them. The decree goes on to recite that “the issue between plaintiff and defendants being submitted to the court sitting as a jury, the court, after hearing the evidence and arguments of counsel, doth find that the parties herein are interested in the real estate described in plaintiff's petition as follows: George Bayha, trustee for Margarette English, is entitled to the undivided 13-30 of said real estate; Louis Kessler is entitled to the undivided 19-60 of said real estate; Alexander McElhinney is entitled to the undivided 1-6 of said real estate; James Hopper is entitled to the undivided 1-36 of said real estate, and Jeanette Grant and J. W. Grant, her husband, are entitled to the undivided 1-18 of said real estate.” The court also found that Mrs. English had in good faith made improvements on a...