Cubbage v. Franklin

• Decision Date: 31 January 1876
• Citation: 62 Mo. 364
• Parties: EX PARTE ELIZA R. CUBBAGE, et al., Respondents, v. ROBERT L. FRANKLIN, Appellant.
• Court: Missouri Supreme Court

62 Mo. 364

EX PARTE ELIZA R. CUBBAGE, et al., Respondents,

v.ROBERT L. FRANKLIN, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

J. G. Chandler, for Appellant, cited Durham vs. Durham's Adm'r, 34 Mo., 447; Dan. Ch. Pr., 1726, and note; Rule 44 St. Louis Ct. Ct.

Dryden & Dryden, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

On the 10th of May, 1870, there was a petition filed in the office of the clerk of the circuit court of St. Louis county, by Eliza R. Cubbage, James R. Cubbage and Catherine Cubbage, the two last named by their curator, Daly, for a partition of certain lots in the town of Kirkwook. The petition stated, that the property was acquired by the petitioners through the will of Edward J. Cubbage, deceased; that Eliza R., the widow of said Edward, was entitled to a life estate in said lots, and the other petitioners, who were minors and children of said Edw. J. and Eliza R., owned an undivided half in fee, subject to the life estate. And the petition asked for a partition according to their respective rights, and for a sale, if partition could not be made without prejudice, etc.

On the same day, as the record shows, the court entered a judgment, on proofs adduced, that the petitioners were tenants in common of said lots, and determined their rights to be as follows: That said Eliza was entitled to a life estate, and that the other two petitioners, minor children, were each entitled to an undivided half, subject to the life estate of said Eliza. It was therefore ordered, adjudged and decreed, that partition of said real estate be made among the parties thereto, according to their respective rights, etc., and for that purpose the court appointed Henry T. Mudd and Hiram Leffingwell, two respectable freeholders, etc., and Julius Pitzman, county surveyor, as commissioners to make the partition, and to report their proceedings to the court.

On the 31st of May, 1870, the record states that the report of the commissioners was filed. Afterwards, on June 7, 1870, the following entry appears of record: “Now, at this day, it appearing to the court that the report heretofore filed of the commissioners in this cause has been laid over for five days, under the rule of this court, and no objection to the confirmation thereof being made, it is therefore, on motion of A. W. Daly, ordered and adjudged that the said report be confirmed; and it further appearing from said report, that partition in kind cannot be made of the real estate mentioned, etc., it is therefore, on motion of said Daly, ordered that the sheriff of St. Louis county proceed to sell said real estate according to law, on the following terms, to-wit: One-third cash, one third in a year, and the balance in two years, the deferred payments to bear six per cent., to be secured by deed on the property sold. And it is further ordered that said sheriff make return of his proceedings herein according to law.”

On July 20th, 1870, the following entry appears: “On motion of the petitioners, it is ordered that the order of sale be amended nunc pro tunc, as of June the 7th, 1870, so as to require in the terms of sale one-tenth part of the purchase money to be paid in cash, and the balance ‘as in the former order.’ ”

On the 23d of July, 1870, the sheriff filed his report of sale, from which it appears, that he advertised the property on the 7th day of June, 1870, and published the advertisement in two newspapers twenty days prior to the sale, and on the 5th of July sold all the right, title and interest of the parties to said lots, for $5,100 to Eliza R. Cubbage, who was the highest bidder, and that said purchaser paid him $200 in part payment.

The next entry on the record is without date, but appears, from the affidavit accompanying the petition, to bear date April 27, 1872.

This petition was filed by B. A. Hill, as curator of James R. and Catherine Cubbage, aged thirteen and fifteen years. It recites the facts heretofore shown by the record, and states that said Eliza R. Cubbage has failed to pay the amount bid upon said property, and is now unable and refuses to pay the same, and that no deed was made to her by the sheriff. The prayer was, therefore, that said sale be declared null. And the petition further states, that said Daly, although appointed curator, never qualified, and they ask, therefore, that B. A. Hill be substituted as curator, in the circuit court. It is further alleged, that the will of their deceased father makes proper partition of said estate, and said partition was in direct contravention of its terms; and further, that said partition and sale were made in the interest of said Eliza R. Cubbage and A. M. Daly, their former guardian, and in fraud of the petitioners, and for the purpose of a private speculation on the part of said Eliza R. and said Daly, and the property was sold for a wholly inadequate price, and is entirely prejudicial to the interests of the infant petitioners. This petition was accompanied by an affidavit of I. C. McDonough, who stated that Mrs. Cubbage had wholly failed to comply with the terms of the sale, and was wholly insolvent, etc.

Then there appears on the record, without date, a petition of J. Franklin, who...