Bompart v. Roderman

• Decision Date: 31 January 1857
• Citation: 24 Mo. 385
• Court: Missouri Supreme Court
• Parties: BOMPART et al., Plaintiffs in Error, v. RODERMAN et al., Defendants in Error.^d1

24 Mo. 385

BOMPART et al., Plaintiffs in Error,

v.RODERMAN et al., Defendants in Error.^d1

Supreme Court of Missouri.

January Term, 1857.

1. The act to provide for the partition of land, etc. (R. C. 1845, p. 764), did not authorize the joinder of all the parties in interest as parties to the petition; there must be a party defendant as well as a party plaintiff, otherwise the proceeding will not be a suit for partition within said act, and, being unauthorized, will be null and void as a judicial proceeding.

2. Such a proceeding being unauthorized as a judicial proceeding, a partition made therein would not be rendered binding upon a married woman--one of the applicants for partition--by reason of the execution by her of an instrument in writing recommending the report of the commissioners to the approval of the court.

3. Although a partition so effected be followed up by possession in severalty of the allotments, a party to such proceeding will not thereby be estopped to go behind the partition and deny that other of said partie had title to the premises so partitioned.

4. Nor would such an estoppel be created by the fact that one of the parties to whom an allotment had been made conveyed the premises, so allotted, to a third person, describing them as the same allotted to the grantor in said partition proceeding.

Appeal from St. Louis Land Court.

This was a suit for partition instituted by Louis B. Bompart and Louis F. Bompart--sons of Louis and François Bompart--against Aurore, widow of said Louis Bompart, Emelie, widow of said François Bompart, the children and grand-children of said Louis and Francois, also against Marie Madeleine Delorier, Charles Roderman and Celeste Roderman, his wife. Plaintiffs state in their petition “that Baptiste Bompart died seized and entitled of the following pieces or parcels of ground, situate in the said county of St. Louis, and more particularly described as follows: First, a piece of ground, in block 37 of the city of St. Louis, containing twelve feet, be the same more or less, and running eastwardly one hundred and fifty feet, be the same more or less, and being lot numbered three, as assigned by commissioners in partition among heirs of Henry Delorier, bounded, etc.; second, a lot or tract of ground, in said county of St. Louis, containing twenty arpens, being lot designated A., as assigned by commissioners in said partition among heirs of Henry Delorier to said Baptiste Bompart, being four arpens wide, etc.; that said Baptiste Bompart died intestate and without issue; that his sole heirs were his brothers, Louis Bompart and François Bompart, and his uterine sisters, Marie Delorier and Celeste, wife of Charles Roderman; that said Marie and Celeste are the children of Henry Melard, alias Delorier, and Celeste Duchouquette; that said Celeste Duchouquette is mother of said Baptiste Bompart, having, subsequent to the death of his father, Lafleur Bompart, intermarried with said Delorier; that said Louis, brother of Baptiste Bompart, has also died intestate, leaving as his sole legal representatives Aurore, his widow [a party defendant to this suit], and Louis B. Bompart [plaintiff], Catherine Therese Bompart, Henry Bompart, Joseph Bompart and Melinda Bompart [who are made defendants to this suit], his children; that said François Bompart, brother of Baptiste, is also dead, leaving as his sole heirs and legal representatives Emelie, his wife, and others, his children and grand-children (among whom was Louis F. Bompart, plaintiff), “but devising by will, duly probated, the usufruct of his estate to Emelie, his wife, remainder to his children, etc. Plaintiffs, therefore, pray that the court determine the rights of the respective parties, give judgment of partition, and for such other and further relief,” etc.

Aurore Bompart, widow of Louis Bompart, as also Emelie, widow of François, answered, admitting the allegations of the petition. Answers were also filed in behalf of the minor defendants, the children and grand-children of said Louis and François.^a1

Charles Roderman and Celeste, his wife, and Marie M. Delorier, by their answer, admitted that Baptiste Bompart died seized of the first lot described in the petition, to-wit: that in block 37; but denied that he died seized, or was ever seized, of the lot of twenty arpens secondly described. They alleged that Henry Delorier died seized of said last mentioned tract; that the same descended at his death to his only surviving children and heirs, the said Celeste Roderman and Marie Madeleine Delorier.

In support of their title as alleged, plaintiffs offered in evidence the following record:

“State of Missouri, county of St. Louis, ss. Be it remembered that heretofore, viz: on the 9th day of February, 1846, there was filed in the Circuit Court of the county aforesaid a petition, which is in the words and figures following, viz:

‘To the honorable John M. Krum, judge of the Circuit Court of St. Louis county, sitting in chancery. Your petitioners, whose names are as follows, by their solicitor, beg leave to represent that the heirs-at-law of Henry Melard, alias Delorier, deceased, whose names are Emelie Bompart, wife of François Bompart, deceased, Louis Bompart, Baptiste Bompart, Mary Delorier, and Celeste Roderman, wife of Charles Roderman, formerly Celeste Delorier, did inherit as heirs-at-law certain real estate, lands and tenements, negroes, slaves, personal property, and choses in action, which said personal and real estate is described as follows, to-wit: one certain piece and parcel of ground situate on the river Des Peres, in the county of St. Louis, and State of Missouri, to-wit: one hundred arpens of land, being in the east part of survey 1930, being part of a concession by the Spanish government of Upper Louisiana to Therese Barois and Frances Brazeau, two widows; and a certain lot situate on the east side of Second street, adjoining the Green Tree tavern, and south of the same, being sixty feet front, more or less, and about_____feet deep, this in the city and county of St. Louis, and State of Missouri; also one negro man, named Bob; one negro woman, named Narcisse, and her two children, girls--the eldest, named Julia, about two years old, the other, named Maria, about five or six months old; one other mulatto girl, called Sophia, about sixteen or seventeen years old. Now, therefore, your petitioners, by their solicitor, pray your honor to appoint commissioners to make partition between the aforementioned devisees and heirs aforesaid, being adults and of lawful age, and mutually consenting to and applying and praying for equitable partition of all the property aforesaid, they being the only heirs and devisees of Henry Melard, alias Delorier, deceased; and your petitioners do further pray your honor to do in the premises all which may be equitable and just in partition of the property, real and personal, which the said several devisees, by mutual agreement and assent, signified by these presents, may or can be done in regard to their rights and interests jointly and severally, and that partition may be made in conformity with equity, and your petitioners will ever pray, etc. For the petitioners, Alphonso Wetmore, solicitor.' "At the November term, 1845, of our St. Louis Circuit Court, on Tuesday, February 10th, 1846, the following proceedings were had herein, viz:

Now at this day come the said petitioners by their attorney, and file their petition herein, praying for the partition [of the] lands and premises therein described, and also of certain personal property referred to, whereupon all and singular the premises are submitted to the court, which being seen, heard, and fully understood, and it appearing to the court from said petition that the said petitioners are the heirs-at-law of Henry Melard, alias Delorier, deceased, and as such inherited from him the following personal and real estate, to-wit: one certain piece and parcel of land, lying and being in the county of St. Louis, and State of Missouri, to-wit: one certain piece and parcel of land, situate on the river Des Peres, in the county of St. Louis, and State of Missouri, to-wit: one hundred arpens of land, being in the east part of survey 1930, being part of a concession by the Spanish government of Upper Louisiana to Therese Barois and Frances Brazeau, two widows; and a certain lot situate on the east side of second street, adjoining the Green Tree tavern, and south of the same, being sixty feet front, more or less, and about____feet deep, this in the city and county of St. Louis, and State of Missouri; and also the following described personal property, to-wit: one negro man, named Bob, one negro woman, named Narcisse, and her two children, girls--the eldest is named Julia, about two years old, the other named Maria, about five or six months old; one other mulatto girl, called Sophia, about sixteen or seventeen years old; the court doth, therefore, order that partition of said real estate and personalty be made between said petitioners according to their respective rights and interests, and Theodore Papin, Samuel Mount and Henry Taylor, three respectable freeholders, residents of the county of St. Louis, where the property to be divided is situate, are hereby appointed commissioners to make such partition, and they are ordered to make report of their proceedings under this order to this court without delay.

"Afterwards, on the 12th day of February, 1846, the following report of commissioners was filed herein, viz:

‘We, therefore, Theodore Papin, Samuel Mount and Henry Taylor, commissioners appointed by the Honorable John M. Krum, judge of the Circuit Court of St. Louis county, in the State of Missouri, in chancery, to make partition between the heirs and devisees of Henry Melard, alias Delorier, deceased, of the real estate, negroes and personal property by him devised, to-wit: unto Emelie Bompart, widow of François Bompart, deceased, Louis Bompart, Celeste, wife...