Ferrell v. Ferrell

• Decision Date: 06 December 1913
• Citation: 253 Mo. 167,161 S.W. 719
• Parties: FERRELL v. FERRELL et al.
• Court: Missouri Supreme Court

161 S.W. 719

253 Mo. 167

FERRELL v. FERRELL et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. SPECIFIC PERFORMANCE (§ 80)—NATURE OF CONTRACT—PARTITION.

A contract between the distributees of real property provided that the estate should be divided into six equal parts, one to be given to each of the parties, that they should all meet at the family homestead in six months, and divide and partition the real property according to the value of each acre thereof, and if they failed to agree they should select three disinterested men, who should act as arbitrators and appraise the value of each acre, and that the decision should be binding on the parties. Held, that the contract was not one to partition the lands, but to arrive at such an agreement in the future, and in case of their failure to agree, not to submit the partition to arbitration, but only to submit to arbitrators the value of each particular acre, and that such contract could be made the basis of a suit for specific performance.

2. SPECIFIC PERFORMANCE (§ 80)—NATURE OF CONTRACT—AGREEMENT TO NAME ARBITRATORS.

An agreement to name arbitrators cannot be specifically enforced.

3. PARTITION (§ 22) — DEFENSES — AGREEMENTS.

An unperformed agreement to submit the partition of certain real property to arbitration was no defense to a suit for partition, where no suit was pending at the time the agreement was made, and no tribunal was constituted for the settlement of the controversy by the arbitration agreement, that part being left open for future action, and defendants, instead of pleading the agreement as a ground for dismissal, prayed for affirmative relief.

4. ARBITRATION AND AWARD (§ 16)—STATUTORY SUBMISSION—REVOCATION.

A statutory submission to arbitration of the rights of distributees to lands acquired from their ancestor was revoked by the bringing of suit by one of the parties for partition, before actual submission to the arbitrators.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Suit by William Homer Ferrell against Jennie Ferrell and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Suit was brought to the September term, 1909, of said circuit court. The plaintiff is the only son of A. J. Ferrell, deceased. The defendants are Jennie Ferrell, his widow, and Ettie Finney, Effie Finney, Lora Brownell, and Nola Ferrell, his only daughters, the plaintiff and defendants being his only heirs. The suit is to partition about 500 acres of land in Buchanan county of which he died seised.

The defendants Ettie and Effie Finney filed a joint answer in which was pleaded, as the only defense, a contract signed by all the parties to this suit, which, omitting signatures, is of the following tenor: "This agreement made and entered into by and between Mrs. Jennie Ferrell, Mrs. Ettie Finney, Mrs. Effie Finney, Mrs. Lora Brownell, Homer Ferrell, and Nola Ferrell, the heirs of A. J. Ferrell, deceased, witnesseth: Whereas, the said A. J. Ferrell died January 12, 1909, leaving certain valuable real estate and personal property. And whereas, each of the undersigned are one of the heirs of said A. J. Ferrell, being entitled each to one-sixth (1/6) of said estate of A. J. Ferrell. And whereas, each of said heirs are desirous of settling and dividing said estate without probating the same and without a partition suit or litigation. Now, then, it is hereby agreed by and between each of the parties hereto. First. All of the personal property is to be given to Mrs. Jennie Ferrell absolutely, except the money in the bank; Mrs. Jennie Ferrell is then directed by each of us to purchase a suitable monument and cause the same to be erected at the grave of said A. J. Ferrell, and pay for the same out of the money now in the bank; and balance of money left in bank is to be divided into six (6) equal parts and one-sixth (1/6) is to be given to each of the undersigned. Second. Mrs. Jennie Ferrell is by us directed to collect all the rents, profits, or emoluments due said estate, or that may become due and to promptly divide the same into six (6) equal parts, and give to each of the undersigned one-sixth (1/6) less all expenses incurred by her in collecting the same. Third. Each of the undersigned agrees to meet at the home of the A. J. Ferrell homestead on the first Monday in August, 1909, and divide and partition said real estate into six equitable parts, according to the value of each acre thereof, each of the undersigned to receive a quitclaim deed to one-sixth of said real estate from the other five. In case of the failure of the undersigned to agree on an equitable partition and division of the real estate, then they are to select three disinterested men who shall act as arbitrators and appraise the value of each acre, and we then agree to abide by the decision of the arbitrators. Fourth. In the partition or division of said real estate as hereinbefore agreed on, the share to be allotted to Mrs. Jennie Ferrell and Homer...