Bragg v. Ross
| Decision Date | 04 May 1940 |
| Docket Number | 36359 |
| Parties | BRAGG v. ROSS et al |
| Court | Missouri Supreme Court |
Von Mayes and N.C. Hawkins, both of Caruthersville, for appellant.
C.G Shepard and Ward & Reeves, all of Caruthersville, for respondents.
COOLEY and BOHLING, CC., concur.
WESTHUES, Commissioner.
Appellant, plaintiff below, filed suit in the circuit court of Pemiscot county, Missouri. A demurrer to her petition was sustained and a judgment entered dismissing her suit. From that judgment plaintiff appealed. Plaintiff labeled her case as an equitable proceeding. The parties to the suit were plaintiff, the widow of C.E. Bragg, who died without direct descendants, July 9, 1935; defendants, Maggie Allman, Hattie Lovelace, Eunice Oliver, Beatrice Jackson, Mary Sims Muzzell, Walter Bragg and Glasgow Bragg. These defendants were described as heirs of C.E. Bragg, deceased. James M. Reeves was also named as a defendant because he was a trustee in a deed of trust. All of the above defendants made default. Charles G. Ross and his wife, Mary Tipton Ross, were named defendants because they were in possession of the property involved in the suit. These latter two defendants filed a joint demurrer to plaintiff's petition.
In the petition plaintiff alleged in substance the following facts: The probate court made an order of no letters of administration upon the estate of C.E. Bragg, as authorized by section 2, R.S.Mo.1929, Mo.St.Ann. § 2, p. 5. Prior to the death of Bragg, that is, on the twelfth day of December, 1928, Bragg and plaintiff conveyed by deed to defendant Charles G. Ross an undivided four-fifths interest in certain lands described in the petition, also a one-fourth interest in the livestock and farm implements located on the farm and used in connection therewith. Defendant Ross, by the terms of the deed and as a consideration for the property conveyed to him, agreed to pay four-fifths of a $ 7,500 note held by one Singleton and secured by a deed of trust on the land. Ross also agreed to pay $ 2,000 on another note of C.E. Bragg. It was alleged that as a result of the deed and contract mentioned, Bragg and the defendant Ross became tenants in common of all the property above described; that the defendant Ross managed the property and received rents and profits therefrom from the date of the deed to the time of filing this suit. It was alleged that on February 3, 1932, the land was sold under the Singleton deed of trust; that at the sale defendant Mary Tipton Ross became the purchaser and defendant Charles G. Ross furnished the purchase price of $ 6,350; that defendant Mary Tipton Ross took the land as trustee for C.E. Bragg and Charles G. Ross. It was then stated that plaintiff, as the widow of C.E. Bragg, was entitled to redeem the one-fifth undivided interest in the land, sold under the deed of trust, for the purpose of securing her dower interest. It was further alleged that plaintiff ought not be required to contribute any part of the purchase price because defendant Charles G. Ross failed to pay four-fifths of the note as agreed and also because Ross received and retained rents and profits sufficient to pay plaintiff's part. In her petition plaintiff offered to pay her share if required to do so by order of court. Plaintiff then alleged that defendant Ross had purchased livestock with the profits derived from the operation of the farm; that a one-fifth interest therein was owned by plaintiff and the heirs at law of Bragg; that the defendants named and described as heirs of Bragg claimed title to a one-fifth interest in the land and personal property; that said claims were adverse and prejudicial to plaintiff. Plaintiff further stated that she was the owner of a dower interest in the land and a one-fifth interest in the livestock and farm implements to the extent of her absolute property by law as the wife of Bragg, free from the debts of the estate. Plaintiff in her prayer asked the court that the one-fifth interest in the land be redeemed. Plaintiff also asked that the court try and determine the interest of plaintiff and defendants in all of said property; that the property be sold and the proceeds divided to correspond with the interests of the parties. The petition was verified. We have only stated the substance of the petition which we deem sufficient for a determination of the points briefed. Other facts pleaded may be referred to in the course of the opinion.
Respondents contend that there was a misjoinder of parties and also a misjoinder of causes of action. It must be noted that the probate court made an order, authorized by section 2, supra. That section provides that after such an order has been made the widow may sue to collect all the property belonging to the estate. Plaintiff alleged that she was entitled to a dower interest in the one-fifth interest in the real estate described in the petition. She asked that this one-fifth interest be redeemed from the sale under the deed of trust and asked for a...
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