Grimes v. Miller

• Decision Date: 29 June 1909
• Citation: Grimes v. Miller, 221 Mo. 636, 121 S.W. 21, 17 Ann. Cas. 576 (Mo. 1909)
• Parties: GRIMES v. MILLER et al.
• Court: Missouri Supreme Court

121 S.W. 21

221 Mo. 636

GRIMES v. MILLER et al.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. ACTION (§ 46) — CAUSES OF ACTION — JOINDER — EJECTMENT AND PARTITION.

Rev. St. 1899, § 593 (Ann. St. 1906, p. 619), providing that plaintiff may unite in the same petition several causes of action whether denominated legal or equitable, or both, where they all arise out of the same transaction or transactions connected with the same subject of action, authorizes the joinder of a cause of action for ejectment with a count in partition, where they relate to the same land.

2. JUDGMENT (§ 707) — CONCLUSIVENESS — PERSONS NOT PARTIES.

An absent heir who was presumed to be dead, and whose interest was not considered in a suit for partition of property to which he was not made a party, was not bound by the decree.

3. DEATH (§ 2) — PRESUMPTION — ABSENCE.

Where an absent heir had no knowledge that his mother was dead or that she left an estate, or of a former partition proceeding between the other heirs, disregarding his interest, and when he left the state he had no property liable to be affected by his absence, and his mother did not die until 12 years after his removal therefrom, the fact that he had been absent for more than 7 years, and in the meantime the other heirs had partitioned and sold the property to which he was entitled to an undivided interest to a bona fide purchaser, did not raise a conclusive presumption of his death, so as to preclude his recovering his interest on his return.

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

Suit by Peter O. Grimes against Henry Miller and others. Judgment for plaintiff and defendants appeal. Affirmed.

Mytton & Parkinson and Charles C. Crow, for appellants. Chas. F. Strop, Henry M. Ramey, Jr., and Eugene Silverman, for respondent.

GANTT, P. J.

This is an action in two counts; the first being ejectment for possession of an undivided one-fourth of the northeast quarter of the northeast quarter of section 26, township 56, range 35, all in Buchanan county, Mo. The ouster was laid on the 19th of January, 1900. The second count was one for partition of the same land. It was admitted that the plaintiff was the son of Mahala Grimes, and that the said Mahala Grimes at the time of her death owned said real estate, and that, if plaintiff had any interest, it was a one-fourth interest; the only evidence offered by plaintiff being as to the value of the monthly rents and profits. It appeared from the evidence offered by the defendant that in 1896 a partition of the premises was had among all the heirs of Mahala Grimes, deceased, except the plaintiff herein, and he was not a party to said partition suit. In that action, the premises were divided in kind, and the defendant became the owner of the interest of the distributees and heirs by deeds from them about a year after that partition was made. Upon this state of facts, the circuit court rendered judgment for possession of the one-fourth interest in said property to which he was entitled as the son of Mahala Grimes. The cause then proceeded on the second count of the petition, and the same evidence and the same admissions were offered, together with the judgment in ejectment on the first count. And thereupon the court rendered a decree of partition adjudging plaintiff was entitled to one undivided one-fourth of the said premises and the defendant three-fourths. It was agreed, and the court so adjudged, that the lands could not be divided in kind without injury to the rights of the parties, and accordingly it was ordered sold, and the proceeds divided according to the rights of the parties as adjudged. From that judgment the defendants have appealed.

1. Section 593, Rev. St. 1899 (Ann. St. 1906, p. 619), provides that "the plaintiff may unite in the same petition several causes of action whether they be such as have heretofore been denominated legal or equitable or both, where they all arise out of: First, the same transaction or transactions connected with the same subject of action." The subject-matter of this action is the land and the parties are the same and we can see no reason why the count in ejectment was not properly joined with the count in partition. Morrison v. Herrington, 120 Mo. 665, 25 S. W. 568; Lane v. Dowd, 172 Mo. 174, 72 S. W. 632; Scarborough v. Smith, 18 Kan. 399. Indeed, it seems too plain for discussion that, where an heir is denied recognition in the division of his ancestor's land, he has no other recourse except to bring his action in ejectment to compel a recognition of his right, and, if he succeeds therein, there is no reason why he should not proceed at once with his right to partition.

2. The real reason alleged by the defendants for the reversal of this judgment is that the plaintiff's family and the defendants who purchased from them believed that the plaintiff was dead at the time that the defendant acquired her interest in the lands in controversy. The evidence tended to show: That the plaintiff left Buchanan county 21 years before December, 1905, and had not been heard from until 1900 or 1901. That in 1896 his mother, Mahala Grimes, died the owner of the fee in this land, and in the same year a granddaughter of Mahala Grimes instituted a partition suit in the circuit court of Buchanan county aga...