Betts v. Gehrig

• Decision Date: 25 November 1924
• Docket Number: No. 24083.,24083.
• Citation: 266 S.W. 690
• Parties: BETTS v. GEHRIG et al.
• Court: Missouri Supreme Court

266 S.W. 690

BETTS v. GEHRIG et al.

No. 24083.

Supreme Court of Missouri, Division No. 1.

November 25, 1924.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Separate actions by Ira Pierce Betts against W. A. Gehrig, E. J. Walker, J. M. Groff, and another. Consolidated for trial. Judgments for defendants, and plaintiff appeals. Reversed in part and remanded. Affirmed in part.

J. L. Fort, of Dexter, W. E. Edmonds, of Bernie, and McKay & Jones, of Kennett, for appellant.

T. R. R. Ely and Smith & Seed, all of Kennett, for respondents.

JAMES T. BLAIR, P. J.

In the Dunklin circuit court appellant, as plaintiff, began a suit to ascertain and determine title and for partition against Gehrig, a like proceeding against Thompson, and a third against Walker and Groff. On change of venue the counts for partition were abandoned; the three cases were heard together, and are now here on separate appeals but on a single record.

The pleadings are not in question, and there is no claim they do not cover the issues as presented to this court. They need not be set out. All the realty involved was owned by John M. Betts at the date of his death, August 9, 1908, and he is the common source of title.

The facts are not much in dispute. In December, 1887, John M. Betts married. He and his first wife, Martha Ellen Betts, became estranged, and he sued for divorce. Thereafter, and some months after decree for plaintiff in that case, this appellant was born in Arkansas, October 17, 1893. On August 18, 1895, Martha Ellen Betts. appellant's mother, died, and he subsequently lived with her relatives. He is her only living child. September 3, 1896, John M. Betts remarried. This second wife, Sarah Ida Betts, survived him. He died August 9, 1908. They had no children. August 21, 1908, Sarah Ida Betts filed her election to take under section 2939, It. S. 1899, now section 321, R. S. 1919, unchanged. In the same year Sarah Ida Betts brought her suit to partition the lands owned at his death by her husband, John M. Betts. These included all the lands involved in the three instant cases. The defendants in that partition suit were the father, sister, and niece of John M. Betts. The petition pleaded John M. Betts' ownership; the widowhood of plaintiff, Sarah Ida; her election to take one-half of John M. Betts' real and personal property, subject to his debts; that administration was proceeding; and that there was ample personalty to pay all debts Of the estate. Plaintiff also claimed a homestead in her late husband's property, and alleged each defendant was entitled to a one-sixth interest in the remaining property. There was a decree for plaintiff which followed the prayer of the petition. Commissioners were appointed and set off to Sarah Ida Betts the S. W. ¼ of section 1 and the N. 2 of the N. W. ¼ of the N. W. ¼ of section ½, township 21, range 9 east, in Dunklin county. They valued this at $9,000. They set off to defendants, jointly, lot 2, block 5, Forrest Hill Addition to the city of Campbell, and lot 1, block B, in the city of Campbell, valued at $8,000. To equalize these the report and the decree required plaintiff to pay defendants $500. Lots 5 and 6 in block 7, in Campbell, which constituted the homestead and mansion house, were ordered sold, and at the sale were purchased by Sarah Ida Betts. November 10, 1910, she sold the farm set off to her to respondent W. A. Gehrig. March 27, 1914, she sold lots 5 and 6, block 7, in Campbell, the homestead and mansion house, to respondent N. W. Thompson. Under a decree rendered in December, 1910, in a suit in partition instituted by John M. Betts, Berlinda Pierce, and Violet (Florence) Betts, the land previously set off to them in the suit brought by Sarah Ida Betts was sold to E.J. Walker and J.M. Groff, respondents here. Appellant claims title as the son and sole heir of John M. Betts. Two issues of fact were presented to the trial court. One was the legitimacy of appellant, and the other was whether,...