Byars v. Howe

• Decision Date: 09 October 1925
• Docket Number: 25044
• Citation: 276 S.W. 43,311 Mo. 14
• Parties: FRANKIE BYARS et al., Appellants, v. McCABE HOWE et al
• Court: Missouri Supreme Court

276 S.W. 43

311 Mo. 14

FRANKIE BYARS et al., Appellants, v. McCABE HOWE et al

No. 25044

Supreme Court of Missouri

October 9, 1925

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Reversed and remanded.

Clarence A. Barnes for appellants.

(1) Every one who has any interest in the cause of action alleged against defendants has been joined as plaintiffs. Scott v. Alton Banking Co., 175 S.W. 922. (2) Plaintiffs W Latney Barnes, J. Garrett Barnes, Ben C. Barnes and Clarence A. Barnes are necessary parties to a complete determination of this suit. The statutes require that every person having any interest in the premises, whether in possession or otherwise, shall be made a party to such petition. R. S 1919, sec. 1998. (3) The Barnes brothers were proper parties. Harbison v. Sanford, 90 Mo. 477; Grogan v. Grogan, 177 S.W. 649; Reinhardt v. Wendeck, 40 Mo. 577; Yates v. Johnson, 87 Mo. 213; Estes v. Nell, 108 Mo. 172; Hiles v. Rule, 121 Mo. 248. (4) The petition does not allege defendant McCabe Howe has any estate in the lands sought to be partitioned. It alleges defendant Marian Barnes Howe is the heir and only heir at law of Irma Barnes Howe, deceased, and that the interest of defendant Marian Barnes Howe is an undivided one-fifth, subject to the possible claim of curtesy therein of defendant McCabe Howe. McCabe Howe thereby became a necessary party. Carson v. Hecke, 282 Mo. 580; Tilton v. Vail, 53 Hun. (N. Y.) 324; Hicks v. Estes, 214 S.W. 159. (5) The respondents are now departing from the theory of their interlocutory judgment obtained upon their demurrer, and for the first time urge that the defendants belong to different classes, between which the statute authorizes partition. Sec. 1995, R. S. 1919, expressly includes curtesy, with estates held as tenancy in common, or coparcenary. But if there cannot be partition as to the curtesy estate in the undivided one-fifth of Marian Barnes Howe, the petition nevertheless stated a good cause of action, as between all parties save McCabe Howe, and he was at least a proper, and we believe a necessary party.

Rodgers & Buffington for respondents.

Plaintiffs Barnes had no estate in the land involved which could be the subject of partition. Sec. 1995, R. S. 1919, sets forth by whom partition proceedings can be brought as parties plaintiff and provides for four distinct classes, namely: co-tenants in fee, co-tenants for life, co-tenants for years, co-tenants by curtesy and in dower. But all the party plaintiffs must belong to one and the same class. A tenant for years cannot have partition against a tenant for life or in fee, or vice versa, unless possibly by mutually consent; but in the case at bar defendant McCabe Howe is resisting partition, and Marian Barnes Howe, a minor is not only resisting, but being a minor, cannot consent. The Barnes brothers with respect to the land in suit are neither tenants in fee, for life, for years, or by curtesy or dower; hence not being in any of the four classes enumerated under the statute, they have no standing in court as parties plaintiff in a partition suit. Benton Land Co. v. Zeitler, 182 Mo. 267. Hence the Barnes brothers have no estate whatsoever in the land, but are mere lien-holders. Gray v. Clements, 277 S.W. 112. Parties must all belong to the same class in an action for partition. White v. Summerville, 223 S.W. 103; Gray v. Clements, 246 S.W. 942.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Suit for partition of real property in Audrain County, commenced on August 31, 1922. Plaintiffs' petition alleges: "Come now the plaintiffs herein and state that plaintiffs Frankie Byars, Blonda Hudson, Clarence Hudson, J. Garrett Barnes, Ben C. Barnes and Clarence A. Barnes are resident citizens of Audrain County, Missouri, and plaintiff W. Latney Barnes is a resident citizen of the city of Amarillo, County of Potter, State of Texas; and that defendants McCabe Howe and Marian Barnes Howe are resident citizens of the city of Lima, County of Allen and State of Ohio.

"Plaintiffs state that Adam C. Barnes died intestate on the 19th day of February, 1920, seized and possessed of the west half of Lot 14 of City Survey No. 50, in the city of Mexico, in the County of Audrain and State of Missouri. That on or about the day of November, 1920, letters of administration were issued on the said estate of Adam C. Barnes, deceased, and that said estate is now in the course of administration and that all debts against the same have been paid; that the said Adam C. Barnes was survived by his widow, Martha G. Barnes, and was survived by five children, J. Garrett Barnes, Ben C. Barnes, W. Latney Barnes, Clarence A. Barnes and Irma Barnes Howe, constituting his heirs and only heirs at law. That the said Martha C. Barnes conveyed to the said J. Garrett Barnes, Ben C. Barnes, W. Latney Barnes, Clarence A. Barnes and Irma Barnes Howe, all her right, title and estate in and to said real estate, and relinquished her dower therein. That the said Irma Barnes Howe was the wife of defendant McCabe Howe and the mother of defendant Marian Barnes Howe. That the said Irma Barnes Howe died intestate in the city of Lima in the County of Allen, and State of Ohio, on the 6th day of July, 1920, leaving surviving as her heir and only heir at law the said defendant, Marian Barnes Howe, a minor, under the age of twenty-one years, and her husband, the defendant McCabe Howe.

"Plaintiffs further state that no administration has been had upon the estate of said Irma Barnes Howe in Missouri.

"Plaintiffs further state that Clarence Hudson is the husband of plaintiff Blonda Hudson; that the plaintiff Frankie Byars, is a widow, and that on or about the 27th day of September, 1921, said J. Garrett Barnes, Ben C. Barnes, W. Latney Barnes, together with his wife Nelle L. Barnes, and Clarence A. Barnes, together with his wife, Ruth L. Barnes, conveyed to plaintiffs Frankie Byars, Blonda Hudson and Clarence Hudson, an undivided four-fifths interest in said real estate, being their respective shares inherited of the said Adam C. Barnes, deceased. That the defendant Marian Barnes Howe, as the only child of Irma Barnes Howe, inherited her mother's interest in said real estate as heir of Adam C. Barnes, deceased, being an undivided one-fifth thereof, and the said Marian Barnes Howe now owns an undivided one-fifth thereof, subject to the possible claim of curtesy therein of the said defendant McCabe Howe.

"Plaintiffs further state that plaintiffs Frankie Byars, Blonda Hudson and Clarence Hudson executed and delivered to J. Garrett Barnes, agent of the heirs of A. C. Barnes, deceased, their one certain promissory note, for the principal sum of five thousand dollars, dated September 26, 1921, due and payable on or before five years after date and bearing interest at the rate of seven per cent per annum, and secured the same by a deed of trust on said real estate, which said deed of trust is recorded in the office of the Recorder of Deeds of Audrain County, Missouri, in Deed of Trust Record Book 50, at page 85, and that the said plaintiffs W. Latney Barnes, J. Garrett Barnes, Ben C. Barnes and Clarence A. Barnes are the owners in possession of said note and the said deed of trust securing same.

"Plaintiffs further say that the estate of Adam C. Barnes, deceased, from which said land descended, has not been finally settled, but that all claims against the same have been fully discharged, and that the personal property of said estate and other real property of said estate and not sought herein to be partitioned, is more than sufficient to pay all claims and demands against the same; and that the real estate herein sought to be partitioned cannot be partitioned without great prejudice to the owners.

"Plaintiffs ask that a guardian ad litem be appointed for the minor defendant, Marian Barnes Howe.

"Wherefore, plaintiffs pray that partition of said real estate may be made between the parties, plaintiffs and defendants, according to their respective interests therein, and if partition in kind cannot be made without great prejudice to the owners, that the same may be ordered to be sold and the proceeds divided among said parties in proportion to their respective interests, and for such other orders, decrees and relief as to the court may seem meet and just in the premises."

The sole defendants are McCabe Howe and his infant daughter, Marian Barnes Howe. The defendant Marian Barnes Howe, being a minor, the trial court appointed Harry G. Stocks as guardian ad litem to represent her in said action. In due time the guardian ad litem filed his written acceptance of said appointment, together with an answer to the petition on behalf of his ward. Defendant McCabe Howe also filed answer to the petition. Thereafter, by order entered of record, the two answering defendants were given leave to withdraw their respective answers and to file demurrer. The demurrer so filed by defendants is as follows:

"Come now the defendants and demur to plaintiffs' petition and for ground thereof state that said petition shows upon its face that there is a defect of parties plaintiff in this to-wit:

"(1) That the plaintiffs, Clarence A. Barnes, J. Garrett Barnes, W. Latney Barnes, Ben C. Barnes are not joint tenants, tenants in common or coparceners with the plaintiffs Frankie Byars, Blonda Hudson and Clarence Hudson and the defendants McCabe Howe and Marian Barnes Howe in the land described in plaintiffs' petition; that all of said plaintiffs are not sufficiently united in interest to enable them to join in a partition suit.

"(2) Said petition shows upon its face that it is a suit in partition and that plaintiffs W. Latney Barnes, J. Garrett Barnes, Ben C. Barnes and Clarence A. Barnes are not...