Crowley v. Sutton

• Decision Date: 01 March 1919
• Docket Number: No. 19530.,19530.
• Citation: 209 S.W. 902
• Parties: CROWLEY v. SUTTON et al.
• Court: Missouri Supreme Court

209 S.W. 902

CROWLEY v. SUTTON et al.

No. 19530.

Supreme Court of Missouri. Division No. 1.

March 1, 1919.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Ora Crowley against John B. Sutton and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

Barton & Impey, of Houston, for appellant.

Lamar & Lamar, of Houston, for respondents.

BOND, J.

I. Plaintiff's first amended petition states, in substance, that she is the granddaughter of Jackson Maples, who owned a certain 360 acres of land, and who died intestate in Texas county, Mo., leaving a widow and four children as his heirs at law; that one of these children, Ada Maples, married John B. Sutton in 1875, who thereafter acquired the interests of two of the children of her said grandfather, Louisa Foard and Farris Maples, through mesne conveyances, and that in 1895, when the said Ada Sutton, formerly Ada Maples, died, she and her husband each owned a half interest in the aforesaid lands, having acquired the same through conveyances from the other three children of Jackson Maples, whose widow, Elizabeth Maples, had also died; that at the time of the death of said Ada Sutton, she left as her only heirs at law plaintiff, Ora Crowley, and six other children, who, together with her husband, were her only heirs at law; that one of said children, Ben Sutton, died in 1907, intestate and leaving his father and his six surviving brothers and sisters, and also a half-brother, his only heirs at law. Plaintiff states that as a result of these happenings and transactions, she and defendant own and possess certain undivided fractional parts of said real estate, specifically set out in her petition, and that plaintiff in addition owns a certain 40 acres conveyed to her by her sister Ollie Sutton, upon which plaintiff had erected permanent improvements of the value of $860, wherefore plaintiff prayed for the partition of said land according to the interests of the several cotenants by a sale for that purpose, since it was insusceptible of division in kind, owing to the number of cotenants, the difference in their respective estates, and the curtesy rights of John B. Sutton, concluding her petition, to wit:

"Wherefore plaintiff prays the court that partition of said lands be made between the parties plaintiff and defendants; that she be allowed the reasonable value for her improvements as aforesaid, and that, if the property cannot be divided in kind without great prejudice to the parties, the same may be ordered to be sold and the proceeds divided among the said parties in proportion to their respective interests and for such other and further orders and decrees and relief as to the court may seem just and proper in the premises."

At the November term of the circuit court of Texas county, defendants answered plaintiff's petition, admitting the common source of title, and also the facts stated as to the heir-ship and ownership of the parties in plaintiff's petition. Defendants further averred that they had paid taxes on the land to the amount of $250, and made permanent and lasting improvements thereon in the sum of $3,000; that plaintiff, without making any improvements thereon, has been in the sole possession of the 40 acres of land conveyed to her sister Ollie Sutton, and that plaintiff and her husband have committed waste on said 40 acres, and became indebted to defendants for provisions furnished to them by said defendants during their occupancy of said tract, concluding their answer, to wit:

"Defendants further say that the only interest owned by plaintiff in or to said lands, or any part thereof, is a small interest inherited by her from her mother, Ada Sutton, subject to the curtesy right of defendant John B. Sutton; that said plaintiff has been fully paid and compensated for all of her interest in said land at this time by reason of the improvements made on said lands by way of constructing houses and other labor and material furnished by defendants and by reason of the assistance given by defendants, and especially by defendant John B. Sutton, to plaintiff and her said husband.

"Wherefore defendants pray that an accounting may be had, and these defendants may be given credit for...