Action by Ben B. Curd against Mollie Brown. From a judgment for plaintiff, defendant appeals. Reversed.
The petition is in the following language: "Plaintiff says: That on the 26th day of February, 1891, Susie E. Curd, his wife, departed this life, seised, subject to right of plaintiff hereinafter stated, of the following land in Grundy county, Missouri, to wit: All of that part of block number four (4) in James R. Merrill's Second addition to the town of Trenton, in said county, described in the following mete and bounds, to wit: Commencing at the southwest corner of said block, thence east one hundred (100) feet, thence north one hundred (100) feet, thence west one hundred (100) feet, thence south one hundred (100) feet, to the place of beginning. That said premises were purchased by said Susie E. Curd and the plaintiff on the 1st day of October, 1877. That at the time thereof said Susie E. Curd paid of the purchase price the sum of one hundred dollars, and this plaintiff the sum of eight hundred and fifty dollars. That at the time of said purchase said premises were unimproved except a small house thereon, of the value of two hundred and fifty dollars. That it was agreed between plaintiff and his deceased wife at the time of said purchase, and at other times during her life, that plaintiff, with his own money and means, should make certain improvements on said premises. That they should reside thereon as a home from the date of purchase aforesaid until death of plaintiff's wife as aforesaid. That the money so invested by plaintiff in the improvement of said premises should, in case of a sale thereof, be repaid to him, and then the amount so paid as the purchase price thereof by each, plaintiff and his wife, repaid to them, if sufficient was realized from the sale thereof; if not, they should each suffer such loss as the amount invested by them bore to the amount received from the sale thereof, and, if a profit was realized from the sale thereof, after paying plaintiff for the sum so invested in the improvement as aforesaid, the same should be apportioned and divided between them in accordance to the amount they had so paid in the purchase thereof. That, in case said property was not sold, they should own the same, and have title thereto and rights therein in accordance with the amounts so invested by each in the purchase thereof, and the improvement thereof. Plaintiff says that during the life of his wife, and in pursuance of said agreement, with her consent and direction, plaintiff, in the erection of a house, stone and other fences thereon, and in erecting a barn and making other improvements thereon, expended at various times during the life of his wife as aforesaid the sum of two thousand dollars. That said property is now of the value of about three thousand dollars. The plaintiff's said wife left surviving at her death herein, and in addition to plaintiff, aforesaid, her mother, Elizabeth Mahan, and brothers, Louis, John, and Willie Mahan, and Mary Carson, wife of John Carson, Amanda Jenkins, wife of Samuel Jenkins, and Jennie Hamilton, wife of C. C. Hamilton, and
one niece, this defendant, the only child of Lucy Brown, wife of Jackson Brown. That plaintiff has purchased, and now owns, all the right, title, and interest of each of said heirs above mentioned in said property, except the defendant, who is a minor, and therefore unable to dispose of any interest she may have therein; and hence the necessity of this suit to determine said interest and right of defendant, and to partition said property. And plaintiff avers the fact to be that the defendant is, as the niece of said Susie E. Curd, seised of one-eighth of said property, subject to the rights of plaintiff as aforesaid; and this property being, as plaintiff avers, not susceptible of division, he prays that the appointment of commissioners be dispensed with, and that the said premises be sold, and out of the proceeds thereof plaintiff be first paid the sum so expended in the erection and improvement of said property as aforesaid, i. e. two thousand and eight hundred and fifty dollars, and that the remainder of the proceeds arising from the sale, if there be any, be divided among plaintiff and defendant according to their respective interests, — that is, that plaintiff may have seven-eighths and defendant one-eighth thereof, and that the court will make such other and further orders, decrees, and judgments in the premises as may be just and equitable."
The answer is a general denial, a claim of one-eighth interest in fee, and an averment that plaintiff has no right or interest in the property.
Appellant's statement in this case is so refreshingly frank, full, and fair that the court takes pleasure in attesting its appreciation of the compliance with its rules and with the statute by adopting it literally. It is as follows:
"This is a suit in partition, in which plaintiff seeks to charge the property with a trust for moneys claimed to have been paid by him in purchasing and improving the same under an oral agreement with his deceased wife. In his petition he alleges that his wife died seised of the property; that the property was purchased by him and his wife; that his wife paid $100 of the purchase money, and he paid $850; that at the time of the purchase it was agreed between them that plaintiff should improve the property, and that they should reside thereon as a home, and, in case it was sold, plaintiff should be repaid the money expended by him in the improvement of the property, and that, if sufficient was realized from the sale, the amounts paid by them respectively should be refunded, and the profits or loss should be shared by them in proportion to the amounts of the purchase money paid by them; that, if said property was not sold, then plaintiff and his said wife should own the same in proportion to the amounts invested by them therein; that plaintiff expended the sum of $2,000 in the improvement of the property; and asks that the property be sold, plaintiff be reimbursed for the money expended, and the remainder, if anything, be divided between plaintiff and defendant in proportion to their respective interests.
"Defendant, by her guardian ad litem, answered, denying generally the allegations of the petition, and claiming the one-eighth of the property in the fee simple, as niece and heir of Susan E. Curd, wife of plaintiff.
"Susan E. Curd was the former wife of Dr. William W. Smith, of Trenton, Mo. Smith died on the 27th of February, 1874, and she married the plaintiff on the 10th of October, 1876, and died on the 26th of February, 1891, without issue, leaving as her heirs her mother, brothers, and sisters, and defendant, an only child of Lucy Brown, deceased, who was a sister of said Susan E. Curd; being eight heirs in all. Plaintiff purchased all the heirs' interests in the property except the defendant's.
"On the trial, the plaintiff, against the objections and exceptions of the defendant, introduced in evidence the testimony of M. F. Curd, his brother, who had lived with plaintiff from a short time after his marriage until the trial, who testified that the property in question was purchased in 1877; that there was a small house on the property at the time. After the purchase, plaintiff erected a house, barn, fences, and other improvements of the value of $2,000 or $2,500. The witness testified that he did not know who paid for the property; said he knew, from what he had heard Mrs. Curd say, that plaintiff paid for it, but that he did not know the amount; that plaintiff paid for the improvements; said he knew, from what Mrs. Curd said, that the plaintiff was to take out his improvements, and all he had put in, and she was to do likewise; said he did not think Mrs. Curd had much money at time of marriage to plaintiff. On cross-examination the witness said he did not recollect the conversation between plaintiff and his wife and Balser, the owner of the property, at the time of the purchase; said he did not think he heard all the conversation about the purchase; said the property cost $850 or $900; said he did not...
