Devoto v. Devoto

• Decision Date: 14 October 1930
• Parties: George J. Devoto, Appellant, v. Nicholas A. Devoto
• Court: Missouri Supreme Court

31 S.W.2d 805

326 Mo. 511

George J. Devoto, Appellant, v. Nicholas A. Devoto

Supreme Court of Missouri

October 14, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Transferred to St. Louis Court of Appeals.

Taylor R. Young for appellant.

Abbott Fauntleroy, Cullen & Edwards for respondent.

Ferguson C. Seddon and Ellison, CC., concur.

OPINION

FERGUSON

This is a suit for partition of real estate and for an accounting. Plaintiff and defendant are brothers. The material allegations of the petition are: That plaintiff and defendant are seized as tenants in common of certain described real property situate in the city of St. Louis "that the share to said lands to which plaintiff is entitled is one-half, and that the interest of the defendant therein is one-half, and that plaintiff and defendant are the fee simple owners thereof;" that plaintiff has expended various sums of money for the upkeep and preservation of the common property, which are set out in minute detail in his Exhibit A; that plaintiff has collected various sums of money in the way of rent for which he should be charged, and that after all credits are allowed the balance of the amounts so expended by plaintiff in behalf of the common property is $ 3,248.17. Continuing, the petition alleges that the property cannot be partitioned in kind without great prejudice to the owners and prays that partition be made, the land ordered sold, for an accounting between plaintiff and defendant, and that whatever sum may be found due to plaintiff in said accounting be paid to plaintiff out of the proceeds of such sale, and that after all other costs and expenses of the proceedings have been paid the net balance be divided equally between plaintiff and defendant.

Defendant's answer denies each and every allegation in plaintiff's petition except those specifically admitted; denies that plaintiff has paid the charges for the upkeep of the premises as alleged in his petition and set out in his Exhibit A; admits "that the fee simple title in and to the real estate described in plaintiff's petition is now owned by the parties plaintiff and defendant in equal parts, that is -- plaintiff and defendant is each entitled to an undivided one-half interest in said real estate." The answer then charges that plaintiff is indebted to defendant in the amount of one-half of an encumbrance against the property alleged to have been paid by defendant and one-half of certain rents and profits from the premises, all of which aggregate $ 4,125, and asks for an accounting. The reply is a general denial.

The cause coming on for hearing, it appears, from the judgment hereinafter set out, that plaintiff and defendant in open court "admitted and stated" to the court that the case was "a proper case for partition" of the real property described in the petition, and that under the pleadings the right to a partition was admitted, and acting upon said admissions so made in open court, the court entered an interlocutory decree and judgment, which very closely follows and conforms to the prayer of plaintiff's petition, and which, omitting the land description and the recitation showing the presence at the time of the hearing of the parties plaintiff and defendant both in person and by their respective attorneys, is as follows:

"The court having been advised about the matter and both plaintiff and defendant having admitted and stated to the court that this case was a proper case for partition of the real estate and property hereinafter described and the said attorney for said plaintiff, George J. Devoto, stated to the court that the petition of plaintiff prays for a partition and that the amended answer of the defendant admits that said real estate and property should be partitioned, the court doth find, adjudge and decree,

"First: That the said plaintiff and the said defendant at all times mentioned in the pleadings herein and at the present time, are seized as tenants in common, of the real estate and all improvements thereon, and said real estate and property is described as follows:

". . . that the share of said lands and property which the plaintiff, George J. Devoto, is entitled to is likewise one-half thereof, and that the ownership and interest of the defendant therein is one-half thereof and that plaintiff and defendant are tenants in common holding the fee simple title thereof.

"The court also finds, adjudges and decrees that from the nature and amount of said property sought to be divided and the numbers and owners thereof, that partition in kind of said real estate and property cannot be made without great prejudice to the owners thereof and the court doth further order, adjudge and decree that said real estate and property be sold according to law to the highest bidder upon the following terms, to-wit: one-third cash and the balance in one and two years, the deferred payments to be secured by deed of trust on said real estate and property and to bear interest at the rate of six per cent per annum, with privilege to the purchaser of paying all cash, provided he shall elect to do so before the approval of the sale by the court.

"It appearing from the pleadings of plaintiff and the pleadings of defendant that plaintiff makes claim for reimbursement on account of certain sums which he alleges were expended by him on behalf of common property, and it appearing that defendant denies that plaintiff is entitled to the sums claimed and that defendant contends that plaintiff is entitled to account to defendant for rents and profits, and is otherwise indebted to defendant for sums expended and for work and betterments done by defendant on the common property, which plaintiff denies, the court reserves passing upon said conflicting claims and reserves jurisdiction to pass upon and decide any and all said conflicting claims and to that end it is ordered and decreed that the moneys arising from the sale of said property shall be paid into court and remain there until the court shall have adjudicated the aforementioned claims of the said parties, and when so adjudicated the sums, if any, found to be due either party, shall be paid out of the moneys arising from the sale of said property, but it is ordered, adjudged and decreed that partition and sale shall proceed as herein specified and that neither the plaintiff nor defendant shall have any lien or claim upon the property after the sale, but all their respective rights, if any they, or either of them, have, shall be satisfied out of the moneys arising from the sale of said property."

The decree then names a commissioner to make such sale, requires that he file bond and fixes the conditions and terms thereof.

Defendant entered no objection and did not note or preserve any exceptions thereto, but plaintiff filed a motion to set aside the judgment and...