Dalton v. Simpson

• Decision Date: 12 March 1917
• Docket Number: No. 18313.,18313.
• Parties: DALTON et al. v. SIMPSON et al.
• Court: Missouri Supreme Court

193 S.W. 546

270 Mo. 287

DALTON et al. v. SIMPSON et al.

No. 18313.

Supreme Court of Missouri, Division No. 1.

March 12, 1917.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Suit for partition by Harriet U. Dalton and others against William Simpson and others, in which Mary Simpson was made a party on her own motion for the assignment of homestead and dower to her. From a judgment confirming a sale of the entire property and distributing the proceeds among the parties, the said Mary Simpson appeals. Reversed and remanded, with directions.

This is a partition for about 91 acres of ground in St. Charles county, Mo. 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 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 Raenssler, 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 venue for cash to John C. Brown, the highest bidder, for $1,250, the 35-acre tract last described in the petition being separately sold subject to the homestead right of the widow and minor children for $110, and the remainder being separately sold to the same bidder for $1,140. 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 40 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 $1,500. 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 objections thereto, which, omitting the caption and signature, are as follows:

"Come now the above-named plaintiffs and object and except to the report of the commissioners appointed herein filed in this cause on June 25, 1913, and move the court to disapprove said report and reject the same, and for ground for their objections to said report plaintiffs state that said commissioners in their said report have allotted and set apart to defendants Mary Simpson, widow, and Frank Simpson, Joseph Simpson, Beulah Simpson, and Lora Simpson, minors, as homestead, 40 acres of land, as same is described in said report; that said 40 acres of land so set apart as homestead to said named defendants greatly exceeds in value the homestead to which said defendants are lawfully entitled, said 40 acres being not less than $2,000 in value, whereas said defendants are entitled to homestead not to exceed the sum of $1,500 in value; that to set apart to said named defendants a homestead in kind out of the lands described in plaintiffs' petition, and especially set apart to said named defendants the 40 acres of land described in said report as a homestead, will greatly depreciate the value of the residue of the premises described in plaintiffs' petition, which are the lands sought to be partitioned by these proceedings, and will result in great inconvenience to the parties interested in such residue; that if the whole of the lands described in plaintiffs' petition were sold as one tract, they would bring the sum of $3,250, that being the reasonable market value of the said lands taken as a single tract of 90 acres, more or less; but that, if the 40 acres described in the commissioners' said report and set apart by them as a homestead be severed from the residue of said premises, and said residue be sold separately, said residue of 50 acres will be so injuriously affected by such severance of a homestead that the same will not bring more than $750.

"Wherefore plaintiffs pray the court, the above-stated facts being considered, to set aside its interlocutory judgment entered in this cause ordering that a homestead in kind be set apart to defendants Mary Simpson, Frank Simpson, Joseph Simpson, Beulah Simpson, and Lora Simpson, and that the court now order the whole of the lands and premises described in plaintiffs' petition to be sold intact as one piece without the setting apart of a homestead in kind to said named defendants, and that a trustee be appointed by the court to collect and receive the value of such homestead in money, to wit, the sum of $1,500, out of the proceeds of the sale of said real estate, and that said trustee be empowered to invest or loan out the said sum of money, and be ordered to pay over the income to be derived from the same to said named defendants during the widowhood of defendant Mary Simpson and the minority of defendants Frank Simpson, Joseph Simpson, Beulah Simpson, and Lora Simpson, and all the balance of said proceeds of sale be distributed among plaintiffs and defendants according to their respective rights in said real estate."

On the 8th day of August, 1913, said objections and exceptions came on to be heard, and the court, after hearing evidence, sustained them, set aside its last interlocutory judgment, and entered a new one directing the sale of the land as a whole to be made at the November term, 1913, to which the appellant excepted, but neither filed nor took leave to file any bill of such exceptions during that term.

At the said November term, and on the 3d day of November, 1913, appellant filed her motion to set aside the said interlocutory judgment of August 8, 1913, and to prohibit the sheriff from making sale of the premises thereon because: (1) It was contrary to law and the provisions of the statute; (2) it appears from the record and report of the commissioners that the homestead was susceptible of allotment and separate use without inconvenience to the occupant, either of the homestead or residue of the land, and without material depreciation in value of the residue; (3) the sale of the whole tract as a single parcel was ordered without ascertaining and fixing the value of the residue and according the owner of the homestead the option and privilege of paying the ascertained value of such residue as provided by law; (4) it is illegal, unfair, inequitable, and...