Emmert v. Aldridge
Decision Date | 30 November 1910 |
Parties | EMMERT v. ALDRIDGE et al. |
Court | Missouri 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.
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:
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:
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: ...
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