Benoist v. Thomas

• Decision Date: 14 May 1894
• Citation: 27 S.W. 609
• Parties: BENOIST et al. v. THOMAS et al.
• Court: Missouri Supreme Court

27 S.W. 609

BENOIST et al. v. THOMAS et al.

Supreme Court of Missouri, Division No. 1.

May 14, 1894.

PARTITION — TITLE INVOLVED — RIGHT TO JURY TRIAL.

1. In an action for partition there was an issue between two defendants as to which was entitled to one undivided half of the land. The decision of that issue depended on a finding as to the alleged title by adverse possession of one of the parties. As to that issue a trial by jury was demanded on the circuit. Held, that it should have been accorded.

2. The statutory proceeding for partition is a civil action, and all pleadings and proceedings therein are governed by the procedure touching such actions. Section 7138, Rev. St. 1889, does not require all issues in partition cases to be tried by the court.

3. Issues in ordinary civil actions (including partition cases) directly involving title to specific real property are triable as of right by jury.

4. Conflicting claims to the same land, advanced by several defendants in a partition case, can be adjudicated in that proceeding.

(Syllabus by the Judge.)

Appeal from circuit court, St. Louis county; W. W. Edwards, Judge.

Action by Benoist and others against Mrs. Thomas and another. From an order refusing a trial by jury, Mrs. Thomas appeals. Reversed.

Laughlin & Tansey and Edward S. Robert, for appellant. Nathan Frank and Chas. W. Bates, for respondents.

BARCLAY, J.

This is an action for the partition of a lot of land in St. Louis county. The plaintiffs are owners of one undivided half of the lot. To the other half each of the defendants asserts full title. Mrs. Thomas, by her separate answer, sets up a title by adverse possession under the statute of limitations. The facts shown at the trial court were these: The property formerly belonged to one Rannells, who, in 1866, sold to Christy & Ryan, a firm composed of James Christy, ancestor of plaintiffs, and Thomas Ryan. The property was at first held in the name of Christy. James Christy and wife conveyed an undivided one-half of said property to Thomas Ryan, by deed, September 22, 1866. Years after, the widow of Rannells released her dower interest to Davitt, one of Rothschild's grantors, and also to Mrs. Thomas. On the 19th day of May, 1876, Thomas Ryan and wife conveyed an undivided half of said lot (with other property) to John F. Gibbons, which deed was a general warranty deed, excepting as against a judgment (in favor of the legal representatives of Christy and others) rendered in the circuit court of the city of St. Louis against Thomas Ryan on the 22d day of November, 1875, and certain mortgages and taxes, and contained the following clause: "The amount of all which liens, taxes, and hypothecations have been computed between the parties hereto as part of the consideration of this deed, and the said Gibbons has purchased the property hereby conveyed for said sum of $28,000 in addition to and exclusive of the sum necessary for the hypothecations." This deed was acknowledged and recorded May 20, 1876. Mr. Rothschild traces his title from Mr. Gibbons, through several recorded conveyances, which need not be particularly recited. The last of them (by which Mr. Rothschild became the owner of the Gibbons title) is dated July 27, 1888. The judgment already mentioned against Thomas Ryan was for the sum of $11,626.83. An execution was issued on said judgment on the 13th day of October, 1879, directed to the sheriff, who, on the 21st day of October, 1879, levied upon Mr. Ryan's interest in said lot, and by virtue of said execution sold said interest to defendant Mrs. Thomas for $205, the 24th day of November, 1879. The sheriff's deed was executed January 13, 1880, and duly recorded May 5, 1880. Mrs. English, while Christy & Ryan owned the land in partnership, was placed in possession of the lot as a tenant of Christy & Ryan. She has remained in possession ever since up to the date of the trial. After the sheriff's sale to Mrs. Thomas, November 24, 1879, Mr. Ryan told Mrs. English that she should, from that time, be the tenant of Mrs. Thomas, and to pay the taxes in lieu of rent for her; and there is evidence tending to prove that Mrs. English assented to that arrangement. When Mrs. English first went into...