SEDDON, C.
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, Blonde. Hudson, Clarence Hudson, J. Garrett Barnes, Ben O. Barnes, and Clarence A. Barnes are resident citizens of Audrain county, Mo., 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 G. Barnes conveyed to the said J. Garrett Barnes, Ben C. Barnes, W. Latney Barnes, Clarence A. Barnes, and Irma Barnes Howe, all her rights, 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 21 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, Blonde 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, Blonde 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 O. 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, Mc-Cabe Howe.
"Plaintiffs further State that plaintiffs Frankie Byars, Blonde 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 ($5,000) dated September 26, 1921, due and payable on or before five (5) years after date and bearing interest at the rate of 7 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, Mo., 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 necessary parties to a complete determination of this suit.
"Wherefore, the defendants pray the judgment of the court."
The trial court sustained defendants' demurrer and, plaintiffs declining to further plead, judgment was entered in favor of defendants with costs against plaintiffs. Plaintiffs appeal to this court from the judgment nisi.
It will be seen from the allegations of the petition that the plaintiffs Barnes, the four sons of Adam C. Barnes, deceased, were the owners by inheritance of an undivided four-fifths interest in fee of the premises sought to be partitioned, each of said four sons being the owner of an undivided one-fifth interest in fee in said premises; that they, with their sister, Irma Barnes Howe (now deceased), acquired the outstanding dower interest of their mother, Martha G. Barnes, therein; that on or about September 27, 1921, before the institution of this proceeding, the said four Barnes brothers conveyed their undivided four-fifths interest in fee to the complaints, Frankie Byars, Blonde Hudson, and Clarence Hudson; that the complaints, Frankie Byars, Blonde. Hudson, and Clarence Hudson, executed and delivered to plaintiff, J. Garrett Barnes, agent of the heirs of Adam C. Barnes, their promissory note for $5,000, dated September 26, 1921, due and payable on or before five years after date and bearing interest at 7 per cent. per annum, secured by deed of trust duly recorded on said real estate, and that said four Barnes brothers, plaintiffs, are the owners in possession of said note and the deed of trust securing the same; that Irma Barnes Howe was the owner by inheritance of the remaining undivided one-fifth interest in fee in said premises, and that said Irma Barnes Howe died intestate on July 6, 1920, leaving surviving as her only heir at law a minor daughter, the defendant Marian Barnes Howe, and also the surviving husband of said Irma Barnes Howe, the defendant McCabe Howe; and that said undivided one-fifth interest in fee in said premises is now owned by said minor defendant, Marian Barnes Howe, subject to the curtesy, or life estate in said one-fifth interest, of the defendant, McCabe Howe.
I. The second ground of the demurrer is that plaintiffs, the four Barnes brothers, are not necessary parties to a complete determination of this partition suit or proceeding and have been improperly joined as plaintiffs herein. The suit or action here under review is a statutory proceeding for the partition of real property, and our statute (section 1908, R. S. Mo. 1919) provides who " shall be made parties thereto. That section reads:
"Who Shall Be Made Parties.—Every person having any interest in such premises, whether in possession or otherwise,,shall be made a party to such petition."
It appears upon the face of the petition that the four Barnes brothers, W. Latney Barnes, J. Garrett Barnes, Ben C. Barnes, and Clarence A. Barnes, complaints herein, are the owners of a promissory note and a deed of trust upon the premises involved securing payment of said note; hence, they are the holders and owners of a contract lien or incumbrance upon the lands sought to be partitioned and, as such lienholders, have...
