Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.
GRAVES, P. J.
Action in partition. The plaintiffs and defendants are the heirs at law of Johm C. Hammons, deceased, or their legal representatives, says and except defendant Mary M. Hammons, who is the widow, and the Denton-Coleman Loan & Title Company, which is a lienholder. John C. Hammons died testate in Benton county, Mo., in January, 1920, seized of the 160 acres of land in controversy in this action. The will simply provided that his estate go according to law.
The land consisted of 440-acre tracts in a string. This was the homestead of Hammons and his wife. The tract of land is therefore one-fourth mile wide by one mile in length, running east and west. Near the center ran a public road (north and south), thus leaving a part of the land to the west and the other portion to the east of the public road. The petition closed with this prayer:
"Wherefore the plaintiffs pray the court to ascertain and determine the estate, title, and interest of the parties, respectively, in such real estate and to define and determine by its judgment and decree the title, estate, and interest severally in and to such real property, the same as the court might or could do in any other or different action; and that the homestead and dower of the defendant Mary M. Hammons be set off and assigned to her and the remainder of said real estate partitioned among the parties as their interests may appear, if the same can be done without great prejudice to, the parties, and, if not, that said real estate be ordered sold and the proceeds divided among the parties in interest, after paying said deeds of trust, and commuting into cash the interest of the said Mary M. Hammons, widow, and for all proper relief in the premises."
Defendant Mary M. Hammons filed the following answer:
"Now comes Mary M. Hammons, one of the defendants in the above-entitled cause, and for her separate answer to the petition admits the truth of the facts stated therein, except that this defendant cannot with certainty ascertain at this time that there will be sufficient personal property belonging to the estate of John C. Hammons to pay all his debts and the expenses of administration.
"Wherefore this defendant prays that her dower and homestead be set off and assigned to her free and clear of all debts and incumbrances, and for such other relief as may be proper."
To this answer plaintiffs first replied thus:
"Come now the plaintiffs in the above-entitled cause and for their reply to the answer herein of defendant Mary M. Hammons say that they admit the statement therein contained that she is entitled to both homestead and dower in the lands described in the petition.
"But the plaintiffs say that her homestead and dower cannot be set off in kind and occupied in severalty without great prejudice and inconvenience and damage to the other parties hereto, for the reason that there are the shares of eleven children to be apportioned out of said estate, subject to said dower and homestead, and that the only practicable course to pursue would be to order the premises sold and the widow's interest to be ascertained and paid over out of the proceeds of sale.
"Wherefore, by reason of the premises, the plaintiffs pray that as partition in kind cannot be made without great prejudice to the interested parties that the court may order the sheriff to sell the lands described in the petition and divide the proceeds according to law."
Upon a trial an interlocutory decree was entered upon the foregoing pleadings, which, after finding facts, concluded in this language:
"The court further finds the total value of said land to be far in excess of the dower and homestead rights of said widow, and that said homestead cannot be occupied severally without great inconvenience to the other parties hereto interested in the residue, and that a severance of such homestead would greatly depreciate the total value of said premises. The court further finds that there are sufficient assets in personal estate to pay all debts lawfully chargeable against the same, or, if there should be a slight deficiency in this connection, the court finds that upon final distribution of the proceeds of the sale of said premises a sufficient sum may be deducted to satisfy any unpaid debts.
"It is therefore ordered, adjudged, and decreed by the court that said premises hereinabove described be sold according to law by the sheriff of Benton county, Mo., for cash in hand, and that out of the proceeds thereof the deeds of trust on said premises to the Denton-Coleman Loan & Title Company be paid and satisfied, and that out of the residue of said proceeds the widow's rights therein be satisfied, and that the balance of said proceeds be apportioned among the other parties according to their prospective interests."
Mary M. Hammons filed motion for new trial, and pending this the court made the following order:
"Now at this time the court of his own motion reopens the above-entitled cause and sets aside all orders and entries heretofore made concerning an appeal on and after January 4, 1921, and said cause is by the court continued until the March, 1921, term of this court."
Thereafter plaintiffs filled the following amended reply:
"Come now the plaintiffs in the above-entitled cause and for their amended reply to the answer herein filed of defendant Mary M. Hammons say that they admit the statement therein contained that she is entitled to both homestead and dower in the land described in the petition.
"But plaintiffs say that her homestead and dower cannot be set off in kind and occupied in severalty without great prejudice, inconvenience, and damage to the other parties hereto, for the reason that there are the shares of eleven children to be apportioned out of said estate, subject to said dower and homestead, and that the only practicable course to pursue is to order the premises sold, under the provisions of sections 5863 and 5864 of the Revised Statutes of 1919 of the state of Missouri, and the widow's interest to be ascertained and paid over to her out of the proceeds of such sale; provided, that this court by its order and judgment herein shall first give the widow her option to pay to the other parties herein the value of the remainder of the premises, the same to be ascertained by the court, or, in the event that she does not choose to do so, that the court may order such homestead to be transferred to the other parties herein, and the payment of the value of such homestead interest to the said Mary M. Hammons, the proceeds of such homestead, if paid to said widow, to be under the control of this court, as provided by section 5864, supra.
"The plaintiffs further state that there are no minor children of the said John C. Hammons now living.
"Wherefore, by reason of the premises, the plaintiffs pray that as partition in kind cannot be made without great prejudice to the interested parties that the court order the sheriff to sell the land described in the petition, and divide the proceeds according to law, in the event that the said Mary M. Hammons, the widow, and the other parties in interest fail or refuse to buy or sell their respective interests to each other as provided by the statutes above quoted, and for all proper relief."
Later the court entered an amended interlocutory judgment and order of sale, adopting its previous finding of facts, and this last judgment is the one in issue upon this appeal of Mary M. Hammons. This judgment is short and reads:
"The death of Oscar Hammons, one of the above named plaintiffs, having been suggested to the court, his executor D. C. Hammons is hereby substituted as a party plaintiff and enters his appearance in said cause.
"And now at this time come the plaintiffs herein and the defendants Mary M. Hammons, Charles G. Harvey, and C. C. Barrett, guardian ad litem for Morgan N. Harvey, a minor and the court having considered the pleadings and additional evidence adduced makes the following additional finding in said cause, to wit: The court finds that the premises described in plaintiffs' petition are of the value of $8,000, subject to a deed of trust for the principal sum of $1,000 and all accrued interest and commission thereon. And further finds that the widow's homestead interest in said premises is of the value of $1,500. The court further finds that the facts heretofore made in this cause on the 17th day of December, 1920, at the regular December term of this court are true. The court therefore finds that the value of said premises are far in excess of the homestead and dower interest of the defendant Mary M. Hammons, and that said homestead cannot be occupied in severalty with [out] greatly depreciating the value of said premises and without great inconvenience to the parties interested, both in said residue and in said homestead.
"It is therefore ordered, adjudged, and decreed by the court that the other parties in interest, except the Denton-Coleman Loan & Title Company, pay to the defendant Mary M. Hammons on or before May 4, 1921, $1,500, the value of the homestead interest, and if she accepts said sum she is hereby directed to transfer said homestead interest to such other parties, or if the said Mary M. Hammons shall elect she may pay to the owners of the residue in said premises the value thereof, less the value of...
