Chamberlain v. Waples

• Decision Date: 31 January 1906
• Parties: CHAMBERLAIN et al. v. WAPLES et al.
• Court: Missouri Supreme Court

91 S.W. 934

193 Mo. 96

CHAMBERLAIN et al. v. WAPLES et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. PARTITION—PLEADING—PETITION.

A pleading denominated a petition for partition, and setting out the interests of plaintiff and of certain defendants, and then alleging that certain other defendants were in possession of the land and claimed some right or title thereto, but that the share or quantity of interest of these latter defendants was unknown to plaintiffs, and concluding with a prayer that the court ascertain and determine the rights and titles of the respective parties, and give judgment that partition be made, etc., stated a cause of action for partition, and not under Rev. St. 1899, § 650, authorizing a special proceeding to determine conflicting claims to land.

2. SAME — ISSUES TRIABLE — CONFLICTING TITLES.

Under Rev. St. 1899, § 4373, providing that where lands are held in joint tenancy, tenancy in common, or coparcenary, any of the parties interested may file a petition for partition, conflicting claims to the possession of lands cannot be adjudicated in a partition suit.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Ida Chamberlain and others against Charles T. Waples and others. From a judgment for plaintiffs, Patrick J. McAvoy and others, defendants, appeal. Reversed.

This cause is here by appeal on the part of Patrick J. McEvoy from a decree and judgment of the circuit court of Jackson county, Mo. The record discloses that the most vital legal proposition involved in this cause rests upon the nature and character of this proceeding; hence it is essential to here reproduce the pleadings of the parties to the controversy.

The petition upon which the judgment and decree rests is as follows, omitting title of the cause: "Plaintiffs for their cause of action against the defendants state: That the plaintiff the American National Bank is a corporation organized and existing under and by virtue of the national bank laws of the United States, and is engaged in the banking business at Kansas City, Missouri. That plaintiffs and defendants are the owners of the rights and titles hereinafter particularly stated in and to the following described lands, situate in Jackson county, Missouri, to wit: That part of the west half (½) of the west half (½) of section twenty-three (23), township fifty (50), range thirty-three (33), which is bounded on the north by the Missouri river; on the east by the east line of the west half (½) of the west half (½) of said section twenty-three (23); on the south by the north line of the southwest quarter (¼) of the southwest quarter (¼) of section twenty-three (23); and on the west by the west line of said section twenty-three (23). That the plaintiff Ida Chamberlain owns and holds a fee-simple title to an undivided ten thirty-sixths (10/36) of said real property; that plaintiff William N. Marshall is the owner and holder of the promissory note described in and secured by a certain deed of trust, dated June 20, 1891, recorded in Book B-474, page 342, in the office of the recorder of deeds in Jackson county, Missouri, made by Norman H. Chamberlain to E. C. Mapledovum, trustee for Harvey L. Daugherty, and as the owner and holder of said note and deed of trust securing the same has a lien for the amount of the said indebtedness now unpaid upon the undivided ten thirty-sixths (10/36) of said real properly now owned and held by plaintiff Ida Chamberlain. That plaintiff Oliver M. Spencer owns and holds a fee-simple title to an undivided four thirty-sixths (4/36) of said real property; and that the plaintiff the American National Bank of Kansas City owns and holds a fee-simple title to an undivided twelve thirty-sixths (12/36) of said real property. That defendants Frederick Funke and Alice Funke each own and hold a fee-simple title to an undivided four thirty-sixths (4/36) of said real property. That defendant Charles I. Waples owns and holds a fee-simple title to an undivided two thirty-sixths (2/36) of said real property. Plaintiffs state that defendants Patrick J. McEvoy and Elizabeth A. McEvoy are husband and wife, and that defendants Patrick J. McEvoy and Richard Roe are in possession of a part of said real estate and claim some right or title to some interests in said real estate, but plaintiffs state that the share or quantity of the interest of defendants Patrick J. McEvoy, Elizabeth A. McEvoy, and Richard Roe in and to said real property is unknown to plaintiffs. Plaintiffs state that defendants Charles I. Waples, Frederick Funke, and Alice Funke are nonresidents of the state of Missouri and cannot be served with process in this state in the manner prescribed in article 4, c. 8, of the Revised Statutes of Missouri of 1899. Wherefore plaintiffs pray that, in accordance with the law in such case made and provided, the court ascertain, determine, and declare the rights, titles, and interests of the respective parties to this suit in and to the land and premises hereinbefore described, and define and adjudge the title, estate, and interest of the parties severally in and to the said real property, and give judgment that partition be made between such of said parties as shall have any right therein, according to their rights as the same may be determined and adjudged by the court, and that commissioners be appointed as provided by law to make partition of said lands; that if it shall appear to the court that partition of said premises without great prejudice to the owners cannot be had, that the court order the sale of said real estate without the appointment of commissioners for the partition thereof in kind, and that the court in such case appoint a special commissioner to make the sale or sales of such real estate under the direction of this court, and divide the proceeds of said sale between the parties hereto as ordered by the court; and for such other and further orders and decrees in the premises as to the court may seem proper and right."

The abstract of record does not disclose any answer by any of the defendants except the appellant Patrick J. McEvoy, which answer was as follows: "Now at this day comes the defendant Patrick J. McEvoy, and for separate answer to the plaintiffs' petition denies each and every allegation therein contained not herein expressly admitted. The said defendant for further answer says: That he is now in the absolute, exclusive, and undisputed possession of all that part of the real estate described in the petition which lies north of a line drawn from a point on the east line of the west one-half (½) of the northwest quarter (¼) of section twenty-three (23), township fifty (50), range thirty-three (33), twelve hundred (1,200) feet north of the northeast corner of the southwest quarter (¼) of the northwest quarter (¼) of said section, to a point on the west line of said section nine hundred eighty-seven (987) feet north of the northwest corner of the southwest quarter (¼) of the northwest quarter (¼) of said section. That said defendant is the absolute owner in fee of an indefeasible estate of all the land described in the petition, lying north of the line aforesaid, and that the plaintiffs and the other defendants herein have no interest or estate therein whatever, except the wife of this defendant, Elizabeth A. McEvoy, whose interest herein is such as arises out of her marital relations to this defendant. Said defendant further says that he has been in the exclusive, open, notorious, undisputed possession of all of the land mentioned in the petition lying north of the line aforesaid, claiming title thereof for more than 20 years prior to the institution to this suit. Wherefore he asks judgment and that he may be discharged, with his costs."

Plaintiffs filed their reply, which was a general denial of the allegations contained in the answer.

This cause was tried by the court without the aid of a jury. Upon the trial it was admitted that the petitioners had a perfect record title from the United States by mesne conveyances to themselves to all that part of W. ½, N. W. ¼ of section 23, which is south of the Missouri river, as it existed November 9, 1887, together with all accretions to said land since said date. Plaintiffs introduced a quitclaim deed from J. R. Lynn, John M. Lynn, Patrick McEvoy, and others, to Hadley, Funke, and Perrin, dated November 9, 1887, conveying the land; "it being the intention to convey all the land in the north half of the west half of fractional section 23, township 50, range 33, south of Missouri river, except the south 40 acres thereof, containing 73.16 acres more or less." It was admitted that the parties petitioning obtained title from Hadley, Funke, and Perrin.

Defendant McEvoy offered evidence tending to prove the following facts: That at the time of the execution of the deed above referred to, the south bank of the Missouri river was some distance south of the line mentioned in the answer as the south line of the land owned by defendant McEvoy. That at the time there was an island in the river some distance from the south bank of the river where it marked the north boundary of the land conveyed by said deed. That at that time and for some years afterwards a part of the current of the river ran on the south of the island, between it and the north bank of the river. That when the bridge was built by the Chicago, Milwaukee & St. Paul Railway Company, across the river in 1886, just west of the west end of the island, a pier of the bridge was set in the edge of the river, which deflected the portion of the current which then ran on the south of the island to the north of the island, and then the channel between the island and south bank of the river began to fill up by accretions gradually forming along the south bank of the river and the south margin of the island, until the channel between the island and river bank was obliterated and filled up. That...