Gulick v. Huntley
| Decision Date | 24 May 1898 |
| Citation | 46 S.W. 154,144 Mo. 241 |
| Parties | Gulick et al. v. Huntley et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Edward C. Crow, Judge.
Reversed and remanded (with directions).
M. G McGregor for appellant Huntley.
(1) The parties to the partition in the probate court acquiescing and each taking possession thereof thereunder made it a good partition in equity and said partition is binding on their creditors and grantees and plaintiff would only be entitled to a decree confirming the partition. Sutton v Porter, 119 Mo. 102; Smith v. Patterson, 95 Mo 529; Nave v. Smith, 95 Mo. 600; Hazen v. Barnett, 50 Mo. 507. (2) The respondent, a married woman, was bound by her acquiescence in the partition made and is bound by agreeing to a parol partition. 2 R. S., secs. 6864 and 6869; Sutton v. Porter, 119 Mo. 104; Freeman on Coten. and Part. [2 Ed.], sec. 412; Goodrick v. Harrison, 130 Mo. 268. (3) The land set off to Mary Huntley, widow, by the terms of the will of Ezra Huntley was not to be divided among those entitled to the same in remainder until after the death of said Mary Huntley. Hence a repartition in any of the land was unnecessary and unlawful. No partition can be made contrary to the intention of the testator expressed in his will. 2 R. S., secs. 7142 and 8916; Cubbage v. Franklin, 62 Mo. 368; Carter v. Alexander, 71 Mo. 588; Lambert v. Haydel, 96 Mo. 443; Sikemeiser v. Galvin, 124 Mo. 371. (4) The respondent, Mary Gulick, only asks that one fourth of the land devised to her mother for life be set off to her; but the court set her off $ 650 worth absolutely, and in addition one fourth of that remaining, absolutely without her showing or claiming any right to such $ 650 worth. As against the other devisees, except her own children, she received her full share under the former partition. That she received more real estate than her share and less personal property would only give her a claim against her own children. She can not recover for a cause of action not stated in her petition or supported by any evidence. Bird v. Railroad, 30 Mo.App. 379; Clements v. Yeates, 69 Mo. 625. (5) If land could not be divided equally it should be sold. One set of tenants in common who are minors can not be required to pay their cotenants money in lieu of their share of land, nor are such cotenants obliged to accept same. 2 R. S., secs. 7154 and 7163; 17 Am. and Eng. Ency. of Law, 757 and 775; Gooch v. Green, 102 Ill. 507. (6) The court should have merely affirmed the former partition and not appointed commissioners; and this was not a suit in partition contemplated by the statute and no attorneys' fees, or fees to guardians ad litem should have been allowed. 2 R. S. 1889, sec. 7182.
E. O. Brown for appellant National Bank.
(1) While George and Jasper Huntley possessed the undoubted right to mortgage, convey or otherwise dispose of the whole of their undivided interest in the common property, or any specific portion thereof, prior to the allotment of such interest in partition proceedings, yet, where, as in this case, such mortgages and conveyances covered less than the entire interest of George and Jasper Huntley, and do not purport to cover their undivided interest in the common property, or any part thereof, then when the estate comes to be divided such conveyances and mortgages will pass only a proportioned interest in the part allotted to the grantees and mortgagees of said George and Jasper Huntley. Clearly then the lien of the judgment of the First National Bank upon the undivided interest of George and Jasper Huntley in the common estate takes precedence, and is entitled to priority over such conveyances and mortgages. Moreover, it is a well established rule that a decree of partition can not extend such mortgages and conveyances to any property not described or included therein. 1 Jones on Mort. [2 Ed.], sec. 706; Randall v. Millett, 14 Me. 51; Green v. Arnold, 11 R. I. 364. (2) While George and Jasper Huntley might convey or mortgage their undivided interest in the common property, they could not convey or mortgage a specific portion of the common property. Shepardson v. Rowland, 28 Wis. 108; Murray v. Haverty, 70 Ill. 318; Tainter v. Cole, 120 Mass. 162. (3) That the circuit court ought to have removed the lien of appellant's judgment from the undivided moiety of the whole estate and declared the same a lien upon that portion of the common property allotted to George and Jasper Huntley, against whose undivided interest such judgment was a charge is too clear to require further argument. Freeman on Coten. and Part., sec. 478. (4) Unless authorized to do so by the decree under which they were appointed, commissioners can not award owelty of partition. Freeman on Coten. and Part. [1 Ed.], p. 633, sec. 522.
Thomas & Hackney for respondents.
(1) The court committed no error in decreeing the partition of the real estate devised to Mary Huntley during her natural life, by the will of Ezra Huntley, remainder to his sons and daughters. Reinders v. Koppelmann, 68 Mo. 482; Preston v. Brant, 96 Mo. 552; Sikemeier v. Galvin, 124 Mo. 367; Freeman v. Freeman, 9 Heisk. (Tenn.) 301. (2) There is nothing in the will of Ezra Huntley, deceased, in terms or by implication forbidding the partition of the estate conveyed to Mary Huntley for life, remainder to his children. McQueen v. Lilly, 131 Mo. 9; Luttrell v. Wells, 30 S.W. 10; McGraw v. Minor, 15 S.W. 6; Lindemeier v Lindemeier, 15 S.W. 524. (3) The court committed no error in decreeing to Mary Gulick lands in fee simple of the value of $ 650 out of the lands devised for life to Mary Huntley, to equalize her with the other devisees. It is true that the respondent, Mary Gulick, in her petition asked that the division made by the commissioners appointed by the probate court be recognized and confirmed, so far as it went. She, at the same time, in her petition alleges that the said partition was unfair to her, and that she did not get her full share of the property attempted to be partitioned by said commissioners. Bell v. McCoy, 38 S.W. 330. (4) The court committed no error in giving priority to the mortgages and deeds of trust of the creditors of George and Jasper Huntley over the judgment of the appellant, the First National Bank of Carthage. Bompart v. Roderman, 24 Mo. 398. (5) And a party to a parol partition has a right to have the same confirmed by a decree vesting in him the legal title. Hagen v. Barnett, 50 Mo. 506; Sutton v. Porter, 119 Mo. 100; Nave v. Smith, 95 Mo. 596.
This is a proceeding in equity for an injunction, and to confirm a parol partition to lands.
In 1886 Ezra Huntley died, seized of large tracts of land in Jasper county and elsewhere. By his will he left his wife, Mary, one third of his property, real and personal, for life, "and after her death the same to be divided equally, share and share alike, between my sons and daughters," and in case of the decease of any of his children before the death of his wife, the share of such child to go to the heirs of the body of such deceased, and if there were no heirs, said share to be divided equally between the surviving children. The remaining two thirds of his property he left to his two sons, George and Jasper, and his two daughters, Mary Gulick and Rosener Steinmetz; the sons to have their portions absolutely, and the daughters for life, remainder to their children. Rosener died before her father, leaving children. He provided in his will that the probate court of Jasper county should appoint commissioners to make partition of the property in the manner specified. After his death George Huntley, the executor, petitioned the probate court to appoint commissioners as the will directed. The court did so. The commissioners partitioned the property in conformity to the directions of the will, and because the real property could not be equally divided, they made the shares equal out of the personal property of the estate. They did not provide for a partition of the one third set apart to the widow after her death. The probate court confirmed the commissioners' report and entered judgment accordingly on May 25, 1886. The parties in interest acquiesced in the partition. They took possession of the part assigned to them, made improvements on their part, rented it or cultivated, mortgaged or alienated the whole or parts of their shares. The estate was finally settled in October, 1894. In November, 1894, the First National Bank of Carthage obtained judgment against George and Jasper Huntley for $ 2,816.40 debt and $ 7.40 costs, and on the seventh of April, 1895, the sheriff levied the execution on all the interest of George and Jasper in the whole property of which their father died seized, treating the partition as void, and levying the execution upon the undivided interest of the defendants in the whole property. Thereupon Mary Gulick, her husband and children instituted this proceeding, alleging all these facts, averring an acquiescence by all the adults and by the father and guardian of Rosener's heirs, in the partition, and that it would be inequitable for them to attempt after so long a time to avoid the partition, and asking that the execution in favor of the bank against George and Jasper be quashed so far as it related to any part of the estate except that allotted to them, and praying that the partition be confirmed "or if, on final hearing, the court should, for any cause, deem it inequitable or improper to confirm the partition so made by said commissioners," that partition be made according to the respective rights of the parties.
The circuit court held the partition by the probate court to be void, and appointed commissioners to partition the...
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