Burton v. Helton

• Decision Date: 31 December 1923
• Docket Number: 23555
• Citation: 257 S.W. 128
• Parties: BURTON v. HELTON
• Court: Missouri Supreme Court

257 S.W. 128

BURTON v. HELTON

No. 23555

Supreme Court of Missouri, First Division

December 31, 1923

R. P Stone and R. F. White, both of Eldon, for appellant.

OPINION

RAGLAND, J.

This suit was commenced in the circuit court for Miller county by the filing of the following petition:

'Plaintiff for his cause of action states that on the 19th day of December, 1919, plaintiff and defendant were jointly the owners of a Ford touring car; that on said date the defendant traded said car to one D. E. Slavens, for all of lot 19 in Driver's second addition to the city of Eldon, Miller county, Mo.; that the defendant then and there contriving and intending to cheat and defraud the plaintiff took the title to said property in his own name, and now claims to own the entire property, and is in the full possession thereof, and has been collecting the rents thereon since the 1st day of January, 1920. Plaintiff avers that he is the equitable owner of an undivided one-half of lot 19 in Driver's second addition to the city of Eldon, Miller county, Mo.

'Wherefore the premises considered, the plaintiff asks the court to try ascertain, and determine the estate, title, and interest of the plaintiff and defendant herein respectively in and to the real estate aforesaid, and to define and adjudge, by its judgment and decree, the title, estate, and interest of the plaintiff and defendant herein severally in and to the aforementioned premises, according to the statutes in such case made and provided, and for costs in this behalf expended.

'Second Count.

'Plaintiff for his second and further cause of action states that plaintiff and defendant are each the owners of an undivided one-half interest in the following described real estate lying in the county of Miller and state of Missouri, to wit: Lot 19, Driver's second addition to the city of Eldon, Mo.; that owing to the amount and kind of the land the same cannot be divided in kind; that said lands ought to be partitioned between the plaintiff and defendant, according to their respective rights and interests.

'Wherefore plaintiff prays the court for an order, judgment, and decree partitioning said lands; and to that end that said lands be sold under the direction and supervision of this court; and that proceeds from said sale, after paying the costs and expenses, be divided between the plaintiff and defendant according to their respective rights and interests; and for all proper relief in the premises.'

Thereafter defendant demurred to the petition on the following grounds:

(1) That 'neither count of said petition states facts sufficient to constitute a cause of action; (2) that plaintiff is not entitled to the relief prayed for'; and (3) 'that plaintiff does not ask for an accounting nor does he state that he has no other adequate remedy at law.'

The trial court sustained the demurrer, and from the judgment rendered thereon plaintiff prosecutes this appeal. The ground of the demurrer is covered by the general specification 'that neither count of the petition states facts sufficient to constitute a cause of action.' The second and third specifications merely particularize the alleged insufficiency.

The demurrant seems to have considered that it was...