Emmert v. Aldridge

Decision Date30 November 1910
PartiesEMMERT v. ALDRIDGE et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Schuyler County; Nat. M. Shelton, Judge.

Action by Alice Emmert against Max Aldridge, Lewis Starbuck, and others. From a judgment for plaintiff, defendant Starbuck appeals. Affirmed.

Fogle & Fogle, for appellant. Higbee & Mills, for respondent.

GRAVES, J.

The present action is one in partition seeking the division of 120 acres of land in Schuyler county. The petition avers that one Charles Aldridge died in 1903 seised of this land, and then charges that the plaintiff and defendants are the heirs at law of the said Charles and such persons as have purchased from his widow and heirs at law. The respective interests of children and grandchildren are pleaded and set out. Prayer is for the sale of the premises and partition of the proceeds. In the petition, it is averred that the defendant Lewis Starbuck had, since the death of Charles Aldridge, acquired the homestead interest of the widow and whatever right some of the heirs had in the property. By answer, defendant Max Aldridge admits that he has parted with his interest to defendant Starbuck. The answer of Starbuck and the reply really make the issues in the case.

Starbuck, by answer, pleads (1) a general denial, (2) that he is the absolute owner of one forty which he describes, and (3)that he owns in fee three-elevenths of the other two forties. By prayer he asks the court to abate this suit until he can try the rights of title to the forty claimed absolutely by him, and further asks that if this request be refused, then all his interests be set off to him in contiguous parts.

By amended answer, Max N. Aldridge claimed to have bought the interest of two of the heirs since the institution of the suit. The reply is short and best speaks for itself thus: "Plaintiff for reply admits that defendant Starbuck is the owner of three-elevenths of land described in the petition by having acquired the interests of Max Aldridge, Irwin L. Aldridge, and Charles L. Aldridge, but denies that he has any other or greater interests in said lands. Plaintiff denies that the defendant Max Aldridge has acquired the interests of Ann I. Munn or Hannah M. Matley in said lands. Plaintiff avers that the several interests of the parties to this action were ascertained and determined by this court by the judgment rendered in the case of Wm. F. Aldridge et al. v. Aldridge et al., at the May term of this court, 1907; that by said judgment it was duly determined that defendant, Starbuck, had three-elevenths interest in said land and no more."

The decree of the circuit court referred to in the foregoing reply was one entered upon a retrial of the cause after an opinion of this court in the recent case of Aldridge et al. v. Aldridge et al., 202 Mo. 565, 101 S. W. 42. The original suit was one to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667). In that case, Starbuck was one of the defendants and litigated the case. The details can be gathered from our recent opinion.

The part of the decree upon retrial of the cause which strikes at the rights of Starbuck, thus reads: "Now, on this 7th day of May, 1907, this cause again coming on for hearing, the parties, plaintiffs and defendants appear, and in obedience of the mandate of the Supreme Court reversing the judgment of this court rendered in this cause on May 13, 1904, said judgment is set aside, and the cause being submitted to the court, after hearing all the evidence the court finds that Lewis M. Starbuck is the owner of the homestead and dower estate of Amelia J. Aldridge, widow of Charles Aldridge, deceased, in the premises described in plaintiff's petition, to wit: Northeast one-fourth of southwest quarter and northwest one-fourth of southeast quarter of section 3, and northeast one-fourth of southwest quarter of section ten (10), township sixty-four (64), range fourteen (14), in Schuyler county, Missouri, for and during the life of Amelia J. Aldridge, and that subject to said homestead and dower, the parties hereto are each seised in fee of the following undivided interests respectively in said premises, to wit: William F. Aldridge, Alice Emmert, whose full name is Charity Alice Emmert, Elsie A. Meeker, Ohio R. Meeker, Anna I. Munn, Hannah M. Matley, and Solomon G. Aldridge of an undivided one-eleventh part thereof; that Earl M. Wray and Ellsworth C. Wray are each seised of an undivided three-elevenths part of said premises, and the homestead and dower interests aforesaid. It is therefore considered and adjudged that said several parties hereto are each seised of said respective interests in said premises, as aforesaid, and it is further adjudged the plaintiffs recover the costs of this action from defendants and that execution issue therefor."

This decree was never appealed from and was pleaded and placed in evidence in the partition case now before us.

From the record it appears that Starbuck is claiming the absolute title to 40 acres of the land, because this particular forty was acquired by Charles Aldridge in 1857, and that Charles and his wife Amelia lived upon it as their homestead since that time to the death of Charles in 1903. The exact contention is briefly stated by counsel thus: "Lewis Starbuck now contends that he is the owner in fee of the above-described forty acres of land for the following reasons: (a) That under the laws of Missouri of 1865, the wife of Charles Aldridge was entitled to a fee in her homestead interests in said land. (b) That subsequent enactments of the Legislature of Missouri could in no wise affect the interests Amelia Aldridge had in the lands of her husband, acquired prior to the date of said enactments. (c) That, having conveyed all her homestead rights to defen...

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