Carson v. Hecke

• Decision Date: 02 June 1920
• Docket Number: No. 20826.,20826.
• Parties: CARSON et al. v. HECKE et al.
• Court: Missouri Supreme Court

222 S.W. 850

282 Mo. 580

CARSON et al. v. HECKE et al.

No. 20826.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Error to Circuit Court, Chariton County; Fred Lamb, Judge.

Suit by Louisa Z. Carson and others against George T. Hecke and others to partition land. After sale of land under judgment and report by sheriff, John S. Lane filed a petition to be made a defendant in the proceedings. From a subsequent judgment ordering a distribution, George T. Hecke and others bring error. Reversed and remanded.

S. A. Davis, of Brunswick, and Ed. E. Yates, of Kansas City, for plaintiffs in error.

Roy W. Rucker, of Sedalia, 0. P. Ray, of Keytesville, and John S. Lane, for defendants in error.

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 A. 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, Sopha Heeke, and the following named children: Lonnie S. Hecke, Ruby M. Hecke, Clara Z. Hecke, Lillie B. Hecke, Willie A. Hecke, Mamie Wilhelm, Leonora Rodgers, Rody C. 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 5-acre strip off of 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, Mo.

"The court further finds that Louisa 5. 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 to 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 15 acres having been bought by William and Charles A. Susawind for $2,100, the other tract of 60 acres by Robert H. Hecke, one of the defendants, for $4,200 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 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, Mo., Ft. Worth, Tex., Wichita, McPherson county, Emporia, Dodge City, and Topeka, Kan., Seneca, Mo., Castle Rock, Cripple Creek, and Leadville, Colo., Pleasant Valley, Utah, and perhaps in other places. When he left home he took his daughter with him, kept her a few months, and then his wife took charge of her. It is not shown that a divorce ever was granted to either spouse, and presumably they continued to be husband and wife until the wife died. Neither does the record state the relationship of the parties to the action to Mrs. Lane, and it is rather vague about whether Lane's whereabouts after he left home were known to his wife and her heirs, but some of the parties knew he was living at least for a good portion of the period of his absence. George Hecke testified he had not heard from him in 18 or 20 years; but he testified, too, that his (Hecke's) father-in-law told him of seeing Lane in Seneca, Mo., but not the year when he saw him. Lane testified he returned to Brookfield, Mo., in 1900, and was in Linn county that winter with his brother, near Brookfield.

The court below on October, 5, 1917, in passing on the issues raised by Lane's petition and the answer to it, found Lane was the widower of Annie E. Lane, and Emittie Lane (afterwards Emittie Roesen) was their daughter; that Lane was 63 years old, was not a party to the partition suit, but was entitled to an estate by curtesy in the proceeds of the said of the aforesaid lands. Other findings in the judgment, and the judgment itself, are as follows:

"The court further finds that there is now in the hands of the sheriff of this county for distribution among the heirs and legal representatives of the said Annie E. Lane, arising from said partition suit, the sum of $5,737.35, and that the cost incident to this motion is $20.50, and that the present cash value of the interest of the said John S. Lane in said fund, computed under the mortality tables of this state, is $2,640.

"The court further finds that since the death of the said Annie E. Lane there has been collected in rents from the said lands so sold in partition the sum of $350, no part of which has been paid to the said John S. Lane, but all of the same has been paid to the descendants of the said Annie E. Lane, and that in addition thereto the defendant Robert Hecke owes as rent from said lands the further sum of $160, and making in all the sum of $510 in rents from said lands, which belongs absolutely to the said John S. Lane, as tenant by...