Gray v. Clements

• Citation: 286 Mo. 100,227 S.W. 111
• Decision Date: 20 December 1920
• Docket Number: No. 21419.,21419.
• Parties: GRAY et al. v. CLEMENTS et al.
• Court: United States State Supreme Court of Missouri

227 S.W. 111

286 Mo. 100

GRAY et al. v. CLEMENTS et al.

No. 21419.

Supreme Court of Missouri, Division No. 2.

December 20, 1920.

Rehearing Denied December 30, 1920.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Suit by Mary Gray and others against Michael Clements and others. From judgment for defendants, plaintiffs appeal. Reversed, and cause remanded.

T. J. Rowe, and T. J. Rowe, Jr., both of St. Louis, for appellants.

Marion C. Early, of St. Louis, for respondents.

WHITE, C.

This suit, under section 2535, R. S. 1909, is to determine title to certain land in the city of St. Louis. There was judgment for the defendants, and plaintiffs appealed. The common source of title was Francois Giraldin, who died in 1878. The plaintiffs claimed under his will. The defendants claimed under a sale made in pursuance of a decree of partition wherein the devisees of Francois Giraldin were parties.

The will of Giraldin, filed and probated December 26, 1878, in the probate court of the city of St. Louis, devised to Josephine Brokel, his only living child, the wife of Francis Brokel, all the revenue and income out of the land in controversy for her natural life, and directed that after her death the property should be divided equally among her children or their descendants. In 1880 Josephine Brokel and Francis Brokel, her husband, instituted a partition proceeding in the circuit court of the city of St. Louis against their children, Mary Brokel, now the plaintiff Mary Gray, Emma Brokel, now the defendant Emma Reidmeyer, Josephine Brokel, now the plaintiff Minnie Artel, Joseph Brokel, now deceased, and Adele Brokel, now plaintiff Adele Joyce.

Due service was had on defendants. Then in regular order followed a decree of partition, order of sale, appointment of special commissioner to make the sale, property sold on June 28, 1880, when Frank Brokel became the purchaser for $400. The special commissioner made report of the sale, which was approved by the court, and a deed executed accordingly on the 13th day of July, 1880, conveying the property to Frank Brokel. All the parties to that proceeding are parties here except Joseph Brokel, deceased. One of the plaintiffs, Frances Toher, was not born at that time, she having been born to Josephine Brokel after the death of Francois Giraldin. Plaintiff "Frank F. Brokel, a minor, at the institution of this suit was the only surviving son of Joseph Brokel, deceased.

The defendants Michael Clements and Frances Clements derived their title by mesne conveyance from Frank and Josephine Brokel. If the said partition proceeding was regular and effective to pass any title to Frank Brokel, then Frank Brokel acquired title to all the premises because all the parties mentioned in the will in connection with the tract of land were made parties to that proceeding. At the time of the partition proceeding, however, all the plaintiffs herein then living were minors—Mary Gray, the eldest, being 16 years of age; Minnie Artel, 8 years of age; Adele Joyce, 5 years of age; Frances Toher not yet born; and Emma Reidmeyer, defendant here, was 13 years of age. Josephine Brokel died in September, 1917, leaving as her only children the plaintiffs and defendant Emma Reidmeyer.

The petition in that partition proceeding, which was introduced in evidence here, sets out the provisions of the will above mentioned and the relationship of the parties, Josephine Brokel being the mother of the minor defendants, and then alleges:

"That the parties hereto have title to said land, as follows: Said Josephine Brokel (one of the plaintiffs) is entitled to a life estate in said land; said Frank Brokel to his right by curtesy in said land.

"That the said defendants' respective interests in said lands are as follows: The said Mary, Emma, Josephine, Joseph, and Adele Brokel are each entitled under said will to one-fifth interest in fee in said land subject to the life estate of the plaintiff Josephine Brokel and the right by the curtesy of said Frank Brokel, and also subject to the rights of any and all children of said Josephine Brokel (plaintiff) that may be yet unborn."

The judgment of the circuit court of the city of St. Louis in that case, rendered May 26, 1880, after reciting the appearances of the parties and giving a description of the land, continues:

"And the court doth further ascertain and determine the respective rights and interests of said parties in said real estate to be as follows, to wit: That the, plaintiff Josephine Brokel is entitled to a life estate in said real estate, and that the defendants are each entitled to an undivided one-fifth interest in fee in said land, subject to the life estate of their mother, the said plaintiff Josephine Brokel, and also subject to the rights of any and all children of said plaintiff Josephine Brokel that may be yet unborn.

"It is therefore ordered, adjudged, and decreed by the court that partition of said real estate be made among the owners thereof according to their respective rights and interests as hereinbefore ascertained and determined."

The court then found that from the nature and amount of the property it could not be divided in kind without great prejudice to the owners, ordered that the property be sold, and appointed Jephtha H. Simpson, special commissioner, "to sell said property and compute the present value of the life estate to the said plaintiff Josephine Brokel in the proceeds of said sale, and to make report thereon to this court according to law. The report was duly made and a deed conveying the property to Frank Brokel was duly executed by Simpson, as stated. The deed recited the judgment and the proceedings of the court as stated.

The record of the court further showed that one H. M. Wilcox was appointed guardian ad litem for the defendant minors in said proceeding, and filed answer for them.

On July 9, 1880, after the report of the sale by the commissioner was approved, H. M. Wilcox, as guardian ad litem for the minors, and Simpson, the special commissioner, signed and presented to the court a petition setting forth that the special commissioner, after paying all the costs, attorney's fees, and the amount due Josephine Brokel for her life estate, had in his hands $91.20, which sum was to be equally divided among all the defendants and any and all children which thereafter might be born to the said Josephine Brokel; and, owing to the uncertainty as to the number of children that might yet be born to Josephine Brokel, the said sum of $91.20 could not at the time be divided; that the said commissioner desired to be relieved of the money and discharged, and the petitioners prayed the court to appoint Frank Brokel, the father of the minors, as trustee to hold said funds for the minors "which are now or hereafter may be born." This petition was sustained. The commissioner was ordered to pay $183.60 to Josephine Brokel, the estimated value of her life estate. Frank Brokel was appointed trustee to take charge of the $91.20, and his bond fixed at $350.

I. The plaintiff claims that the partition proceeding Was void because, under section 2559, the court had no power to make partition of land between the life tenant and the remaindermen. That section is as follows:

"Partition, Suit for, by Whom Brought, How Determined.—In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for a sale of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests."

Early cases construing that statute have been followed by very recent cases in which it is held that the authority of a court to order a partition without the consent of all the parties is limited by the terms of the statute. The only estate authorized by section 2559, H. S. 1909, to be partitioned are estates which are conterminous, and not successive. Cotenants of a life estate may have partition of their life estate which would not affect the remainder, or remaindermen, tenants in common, may have a partition of the remainder subject to the life estate. But there is no authority for a partition between the life tenant and a remainderman. Stockwell v. Stockwell, 262 Mo. 671, loc. cit. 679, 680, 681, 682, 172 S. W. 23; Carson v. Hecke, 222 S. W. 850, loc. cit. 853. The opinions in these cases review many cases in this state and reach the conclusion as stated. It is said in the Hecke Case, 222 S. W. loc. cit. 853:

"But in this jurisdiction and most others a tenant for life, whether by curtesy or otherwise, absent statutory authority, cannot compel partition against remaindermen and reversioners, nor they against him, and between such estates the remedy is unavailable except by consent of the respective owners. This is because no common interest exists between them of any character, either in coparcenary, tenancy in common, or joint tenancy."

II. The respondent, however, claims...