Devoto v. Devoto

• Decision Date: 23 June 1931
• Docket Number: No. 21581.,21581.
• Citation: 39 S.W.2d 1083
• Parties: DEVOTO v. DEVOTO.
• Court: Missouri Court of Appeals

39 S.W.2d 1083

DEVOTO v. DEVOTO.

No. 21581.

St. Louis Court of Appeals. Missouri.

June 23, 1931.

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

"Not to be officially published."

Suit for partition by George J. Devoto against Nicholas A. Devoto. From an order overruling plaintiff's motion to set aside the interlocutory judgment and decree, plaintiff appeals. Cause transferred from Supreme Court .

Affirmed.

See, also, 19 S.W.(2d) 662.

Taylor R. Young, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

NIPPER, J.

This is a partition suit, and also a suit for an accounting between two brothers, who are the owners of the property.

The petition alleges that plaintiff and defendant are seized as tenants in common of certain described real estate in the city of St. Louis; that the plaintiff is the owner of one half interest, and the defendant the owner of the other half. The plaintiff alleges that he has expended various sums of money for the upkeep and preservation of the property, which is set out in detail, and that he 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. The prayer of the petition asks that partition of said lands be made between the plaintiff and defendant according to their respective interests, and, as partition in kind cannot be made without great prejudice to the owners, that the same may be ordered sold and the proceeds divided among the plaintiff and defendant in proportion to their respective interests, and that the court order an accounting to be had between plaintiff and defendant, and that whatever sum may be found due the plaintiff in said accounting be paid to him out of the proceeds of the sale, and that the net balance be divided equally between the plaintiff and defendant.

The answer of the defendant, after a general denial, specifically denies that plaintiff has paid the charges for the upkeep of the premises as alleged in his petition, and admits that the fee-simple title in and to the real estate described in plaintiff's petition is owned by the plaintiff and defendant in equal parts. The answer then charges that plaintiff is indebted to the defendant in the amount of one-half of an incumbrance against the property and one-half of certains rents and profits from the premises, all of which aggregate $4,125.

Defendant also asks for an accounting.

It appears from the judgment rendered that plaintiff and defendant admitted and stated to the court that the cause was a proper one for partition, and that under the pleadings the right to partition was admitted. The court then entered an interlocutory decree and judgment in accordance with the prayer of plaintiff's petition.

The court then found that plaintiff and defendant are seized as tenants in common of the real estate described in the petition, and all improvements thereon, and that the plaintiff and defendant are each entitled to one-half interest in the property.

The court also found that, from the nature and amount of said property and the numbers of owners thereof, partition in kind could not be made without great prejudice, and therefore the court ordered that said real estate and property be sold according to law to the highest bidder on the following terms: One-third cash and the balance in one and two years, the deferred payments to be secured by deed of trust on the real estate and to bear...