Carson v. Hecke

• Decision Date: 02 June 1920
• Parties: LOUISA J. CARSON et al. v. GEORGE T. HECKE et al., Plaintiffs in Error
• Court: Missouri Supreme Court

222 S.W. 850

282 Mo. 580

LOUISA J. CARSON et al. v. GEORGE T. HECKE et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

June 2, 1920

Appeal from Chriton Circuit Court. -- Hon. Fred Lamb, Judge.

Reversed and remanded.

S. A Davis for plaintiffs in error.

(1) The court erred in allowing John S. Lane to intervene or become a party defendant in this case, because under the law if he was a tenant by the curtesy, his tenancy attached at the birth of Emittie Roesen, which was prior to 1879, and he as such tenant had no interest that could be partitioned, and was not a necessary party to the partition suit, and his application should have been denied. Atkinson v. Brady, 114 Mo 200; Hayes v. McReynolds, 144 Mo. 348. (2) Sections 8499-8500 and 8501, known as the Mortality Tables, was passed first in 1903 and amended in 1905. Lane's right, if he had any, was vested in him at the birth of Emittie, prior to 1877, and this mortality table could not be used for the purpose and as a basis for giving Lane a part of the proceeds of this sale, and the court erred in its judgment. Under the law, as cited above, Lane, if he had not forfeited his rights, would have been entitled to the possession of the property alone. Arnold v. Willis, 128 Mo. 145; Lete v. Bank, 115 Mo. 185; Vanata v Johnson, 170 Mo. 269; Smith v. White, 165 Mo. 590; Teckenbrock v. McLaughlin, 246 Mo. 711; Graham v. Ketchum, 192 Mo. 15. (3) This Act of 1905 under which this allowance to Lane was made is not retrospective in its character, and does not apply to cases arising before 1889. Cases supra. (4) Since 1889, the tenant by the curtesy is about in the same condition as the widow with her dower, and his rights can be measured in the same manner, but not his rights that accrued prior to 1889. Teckenbrock v. McLaughlin, 246 Mo. 711. (5) Interpleader forfeited his right to curtesy when he, without cause or excuse intentionally and wrongfully deserted his wife and child, and left the State and remained out of the State. If he had obtained a divorce for the fault of his wife it would have been a voluntary act, and he could not claim property rights in her real estate afterwards. Any act of Lane's which showed that he had voluntarily abandoned his property rights was sufficient to bar his curtesy. Doyle v. Rolwing, 165 Mo. 231; Phelps v. Walther, 78 Mo. 320; Musick v. Dodson, 76 Mo. 624; Zallagher v. Delargy, 57 Mo. 37; Rose v. Bates, 12 Mo. 33. (6) Lane by his act induced the purchaser and all other people interested in this piece of property to believe that he had no interest therein, and it is now too late for him to assert an interest. Snodgrass v. Emery, 66 Mo.App. 462; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; 16 Cyc. 774; 17 Corpus Juris, p., 435, sec. 57; 8 R. C. L. p. 404, sec. 17; R. S. 1909, sec. 2370.

OPINION

GOODE, J.

This action was filed to have partitioned two parcels of land inherited by the parties as heirs of Annie E. Lane, who died intestate March 29, 1915. The facts of the case, up to the interlocutory judgment rendered by the circuit court, are stated well in that judgment, which, omitting caption, reads as follows:

"Now on this the 21st day of September, 1916, this (cause) coming on to be heard and it appearing that all of the defendants have been served by process except Perry Keith who has since entered his appearance as defendant in this cause by answer filed.

"And the court finds that it has jurisdiction of the subject and defendants herein.

"Wherefore the cause is submitted to the court upon the petition of plaintiff, the answer of Gilbert Lamb, as guardian ad litem of Emittie Roesen, a person of unsound mind, and answer of A. W. Johnson, guardian ad litem of Lonnie S. Hecke, Ruby M. Hecke, Clara Z. Hecke, Lillie B. Hecke and Harry L. Hecke, minor heirs of Louis Hecke, deceased, and interpleader of Allie Drace, as administrator of Louis Hecke deceased, and the answer of Willie Hecke, Laura Hecke, George T. Hecke, Alice V. Hecke, Sarah Keith and Perry Keith, filed in this court.

"And the evidence of plaintiffs' witnesses in support thereof, all of which was heard, seen and considered by the court, and the court finds from the pleadings and evidence that Mrs. Anna E. Lane died on the 29th day of March, 1915, intestate, leaving as her sole heirs, George Hecke, Louis Hecke, Robert Hecke, Louisa J. Carson, Sarah W. Keith and Mrs. E. A. Roesen.

"That subsequent to the death of said Anna E. Lane, one of her said heirs, namely, Louis Hecke, died intestate, leaving surviving him as his sole heirs the following named parties, namely, his widow, Sophia Hecke, and the following named children: Lonnie S. Hecke, Ruby M. Hecke, Clara Z. Hecke, Lilie B. Hecke, Willie A. Hecke, Mamie Wilhelm, Leonora Rodgers, Rody G. Gotchalk, Denver Hecke, Theodore Hecke and Harry L. Hecke, and that Allie Drace has been appointed and qualified as administrator of the estate of Louis Hecke, deceased.

"The court further finds that said Annie E. Lane at the time of her death was the owner in fee simple of the following tracts or parcels of land; 90 acres, being 15 acres off the south end of 70 acres, the west side of the northeast quarter; 10 acres off the west side of the southeast quarter of the northeast quarter; also five-acre strip off the east part of the southwest quarter of the northeast quarter, and 60 acres being the east half of the west half of the southeast quarter and part of the west half of the east half of the southeast quarter, all of Section 32, Township 53, Range 19, Chariton County, Missouri.

"The court further finds that Louisa J. Carson, plaintiff, and George Hecke or his assignee Alice Hecke, Robert Hecke, Sarah W. Keith, Emittie Roesen are each entitled to one-sixth of said real estate and that the estate of Louis Hecke, deceased, combined, are entitled to one-sixth part of said real estate.

"That plaintiff and said defendants are tenants in common and are severally entitled to moiety of said estate as specified aforesaid and as such tenants in common are of right entitled to partition of the real estate aforesaid, but that owing to the character and location of said real estate and number of parties, partition in kind cannot be had without great prejudice to the rights of all parties in interest.

"The court further finds that Messrs. Benecke & Benecke and F. C. Sasse, esq., have been employed by plaintiff as attorneys and to be allowed a reasonable compensation for their services herein to be taxed up as cost in this proceeding. Wherefore the premises considered and the court being fully advised, the court doth find and decree and adjudge that prayer for partition of said land be granted and that it is decreed and adjudged by the court that the lands be sold by the sheriff at public sale for terms cash in hand and that after deducting the cost of proceedings the proceeds be divided in accordance with this decree and that the share to which Louis Hecke would have been entitled to if living, shall be paid to the administrator of his estate, and the cause be continued to await the report of the sheriff."

The sheriff of Chariton County reported February 6, 1917, that he had sold the land at public auction to the highest bidders, in compliance with the aforesaid judgment, the parcel of fifteen acres having been bought by William and Charles A. Susawind for $ 2100, the other tract of sixty acres by Robert H. Hecke, one of the defendants, for $ 4200, and the purchase money for both tracts had been paid.

About a month after this report was filed, and on March 10, 1917, John Lane filed a petition to be made a defendant in the proceeding, alleging he was the widower of Anna E. Lane, deceased, and entitled to a curtesy interest in the lands; that he had not theretofore been made a party and had no notice of the suit for partition until after the judgment was rendered and the lands sold; that he was willing to accept in lieu of his curtesy interest a gross sum in cash to be computed under the mortality tables of the State, concluding with a prayer to be made a defendant, for the court to ascertain the extent of his interest in the land and its value according to said mortality tables and that the value be paid him in lieu of his life estate. He made no averment about being in possession, and the conclusion to be drawn from the record is that he was not, but instead the parties plaintiff and defendant who are disputing the validity of his claim of a curtesy interest.

Omitting to notice some intermediate proceedings which are immaterial on this appeal, the following appear in the record: first, a demurrer to the intervening petition of Lane was filed by all the defendants and overruled; then, on October 17, 1917, George T. Hecke, Alice Hecke, Sarah W. Keith and Perry Keith, four of the defendants, filed an answer to Lane's petition, denying he was entitled to a gross sum in cash out of the proceeds of the land in lieu of an estate by curtesy, and praying the petition be dismissed.

The evidence taken on the issues raised by the petition and the answer to it, was intended to support the contention of the parties that Lane had forfeited his curtesy by deserting and failing to provide for his family. The facts, in substance were: John and Anna Lane, the deceased, were married in 1873, and from two to four years thereafter a daughter, Emittie Lane, who afterwards became Emittie Roesen, was born of the marriage. In 1877 or 1878 Lane abandoned his wife and lived with her no more. During the years of his absence he stayed for various periods in Linn County, Missouri; Ft. Worth, Texas; Wichita, McPherson County, Emporia, Dodge City and Topeka, Kansas; Seneca, Missouri; Castle Rock, Cripple Creek and Leadville,...