Dalton v. Simpson

• Decision Date: 12 March 1917
• Parties: HARRIETT U. DALTON et al. v. WILLIAM SIMPSON et al; MARY SIMPSON, Appellant
• Court: Missouri Supreme Court

193 S.W. 546

270 Mo. 287

HARRIETT U. DALTON et al. v. WILLIAM SIMPSON et al; MARY SIMPSON, Appellant

Supreme Court of Missouri, First Division

March 12, 1917

Appeal from St. Charles Circuit Court. -- Hon. Edgar B. Woolfolk Judge.

Reversed and remanded (with directions.)

C. W Wilson and J. W. Wilson for appellant.

(1) The widow of the deceased homesteader was and is entitled to have her homestead allotted to her in kind, inasmuch as it clearly appears that the homestead was and can be allotted in a compact body, leaving the residue of the land in a compact body of 50.23 acres. R. S. 1909, sec. 6708-6714; Schaeffer v. Beldsmeier, 9 Mo.App. 444. (2) The only condition under which the statute authorizes the court to order the homestead sold, is in the case where the dwelling house, outbuildings, and lands in connection therewith, in which a homestead shall exist, shall exceed the value provided by the statute, and a severance of the homestead would greatly depreciate the value of the residue or be a great inconvenience to the parties interested, and it appears that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in the homestead or the residue. R. S. 1909, sec. 6714; Schaeffer v. Beldsmeier, 9 Mo.App. 444. (3) If the homestead, as in the case at bar, can be occupied in severalty with perfect convenience and the residue can be used in severalty with perfect convenience, the mere fact that the land as a whole would sell for a little more if sold as one tract than it would bring if sold in two separate tracts, does not authorize the sale of the homestead against the will of the homesteader. The statute plainly bases the right to order the sale upon the proposition that it must "appear that the homestead cannot be occupied in severalty, without great inconvenience to the parties interested in the homestead or in such residue." (4) But if section 6714 applies to this case, then, if the court found the homestead could not be occupied in severalty, it should have fixed the value of the residue and afforded the homesteader the opportunity to pay the price of the residue which she asked to be done. R. S. 1909, sec. 6714.

W. R. Dalton and B. H. Dyer for respondents.

(1) Where a homestead is a part only of an estate held in common it is subject to a proceeding in partition. Beckner v. McLinn, 107 Mo. 289; Secs. 6714, 2559, R. S. 1909. (2) A motion for new trial or a motion to modify a decree must be filed within four days and if filed after four days, and especially if not filed until after the adjournment of the term at which the trial was had, it comes too late to perform any office in the case and no exceptions can be predicated thereupon. Smith v. Smith, 192 Mo.App. 105; Windes v. Earp, 150 Mo. 600. (3) Appellant having failed to file a motion for a new trial upon the rendering of the interlocutory judgment of partition and order of sale made at the June term, 1913, or to save her exceptions to such interlocutory judgment by a term bill of exceptions, such interlocutory judgment became final and is immune from attack at a subsequent term of the court. Windes v. Earp, 150 Mo. 605; Richardson v. Schuyler County, 156 Mo. 407. (4) Appellant having acquiesced in the ruling of the court rendered at the June term, 1913, until the succeeding November term thereof, and having failed to except to the interlocutory judgment entered at the June term, 1913, on August 8, 1913, and to save her exceptions by a timely bill of exceptions, will be held to have abandoned her exceptions and to have thereby contributed to the final judgment rendered in the case, and her attack on the interlocutory judgment made for the first time at the next succeding term comes too late to have any effect upon the interlocutory judgment. Blanchard v. Dorman, 236 Mo. 435; Simpson v. Scroggins, 182 Mo. 560; Reineman v. Larkin, 222 Mo. 156; St. Louis v. Lawton, 189 Mo. 474; State v. Larew, 191 Mo. 192; Windes v. Earp, 150 Mo. 600; Richardson v. Schuyler County, 156 Mo. 407; Moran v. Stewart, 246 Mo. 462; Mexico v. Barnes, 158 Mo.App. 612; Smith v. Baer, 166 Mo. 392; Asphalt Co. v. Ullmann, 137 Mo. 543; Bohn v. Lucks, 165 Mo.App. 701. (5) The statute authorizing the court to deal with the homestead and to order a sale of the whole premises if the case require it, and to apportion the proceeds between the parties and to make all such orders in the premises as shall be equitable and just, is an ample and full investiture of the court with authority and jurisdiction to do precisely what the court has ordered and done in this case. Beckner v. McLinn, 107 Mo. 277; Secs. 6714, 6715, R. S. 1909.

BROWN, C. Railey, C., concurs.

OPINION

BROWN, C.

This is a partition for about 91 acres of ground in St. Charles County, Missouri. Originally Harriet U. Dalton, John C. Brown and Lucy L. Brown were plaintiffs, and William Simpson, Seony Simpson, Frank Simpson, Bertha Simpson, Joseph Simpson, Lora Simpson and Beulah Simpson were defendants. The petition is as follows:

"Plaintiffs state that they and defendants are the owners in fee in common and in possession of the following described real estate in St. Charles County and State of Missouri, to-wit:"

(Here follows a description by metes and bounds of the land involved which constitutes a compact contiguous tract, although somewhat irregular in shape. The petition then proceeds):

"That plaintiff Harriet U. Dalton, is the owner of an undivided three-ninths interest in and to said real estate; that plaintiff John C. Brown is the owner of an undivided one-ninth interest in and to said real estate, subject to the inchoate right of dower of his wife, Lucy L. Brown; that plaintiff Lucy L. Brown is the wife of said John C. Brown and has an inchoate right of dower in the first two tracts above described; that defendant William Simpson is the owner of an undivided one-ninth interest in said real estate subject to the inchoate right of dower in his wife, Seony Simpson; that the defendant Seony Simpson is the wife of said William Simpson and has an inchoate right of dower in the first two tracts above described; that defendant Frank Simpson is the owner of an undivided one-ninth interest in and to said real estate, subject to the inchoate right of dower in his wife, Bertha Simpson; that Bertha Simpson is the wife of said Frank Simpson and has an inchoate right of dower in the first two tracts above described; that Joseph Simpson, Lora Simpson and Beulah Simpson, each own an undivided one-ninth interest in said real estate; that said Frank Simpson, Joseph Simpson, Lora Simpson and Beulah Simpson are all minors and have no legal guardian or curators; that said real estate is not susceptible of division in kind without great detriment to the interest of the parties owning the same. Plaintiffs ask for the appointment of a guardian ad litem for said minors to look after their interest herein. Wherefore plaintiffs pray the court for a judgment for partition for said real estate in accordance with the interests of the respective parties hereto as herein set out and for an order for the sale of said land for the purpose of partition and for the distribution of the proceeds of such sale to the parties hereto according to their respective rights therein, and for such other and further orders and judgments as to the court may seem just and right."

The defendants were duly summoned at the November term, 1912, of the St. Charles Circuit Court, during which Osmund Haenssler, Esq., was appointed guardian ad litem of the four infants and answered as follows: "That he has not sufficient knowledge of the matters alleged in plaintiffs' petition either to admit or deny the same and asks that plaintiffs be required to make strict proof of the allegations and averments in their petition contained."

During the same term and on December 24, 1912, said cause was called and submitted on the pleadings and evidence, and the court entered its judgment defining the rights of the parties and for partition and ordered that the property be sold by the sheriff at the following March term, which was done on March 4th at public vendue for cash to John C. Brown, the highest bidder, for $ 1250; the thirty-five-acre tract last described in the petition being separately sold subject to the homestead rights of the widow and minor children for $ 110 and the remainder being separately sold to the same bidder for $ 1140. The sheriff made his report at the same term. On the 12th of the same month the appellant, Mary Simpson, widow of Wiley D. Simpson, filed in the court her motion to be made a party and to set aside the sale and for the assignment of homestead and dower, which was sustained, the sale set aside, as was also the interlocutory judgment rendered at the previous term, that proper steps might be taken to assign the homestead and dower. A new interlocutory judgment was entered adjudging that the defendants Mary Simpson, widow, and Frank Simpson, Joseph Simpson, Lora Simpson and Beulah Simpson, the minor children of Wiley D. Simpson, deceased, were entitled to a homestead in the property described in the petition, and appointing commissioners to set it out, and to make report of their proceedings at the following June term. They proceeded to the performance of that duty, setting off for that purpose forty acres from the south side of the tract in a compact body on which was situated the dwelling house and appurtenances of the deceased owner, in which the widow and minor children resided at the time, and valued it at $ 1500. They filed their report on June 28th, and thereafter, at the same term, and on the 5th day of August, 1913, while the court was still in session, the plaintiffs filed their exceptions and...