Harlow v. Benning, 40153.

• Decision Date: 12 January 1948
• Docket Number: No. 40153.,40153.
• Parties: ROY HARLOW, Appellant, v. ELVIRA BENNING ET AL.
• Court: Missouri Supreme Court

207 S.W.2d 471 ROY HARLOW, Appellant,
v.
ELVIRA BENNING ET AL. No. 40153. Supreme Court of Missouri. Division One, January 12, 1948.

[207 S.W.2d 472]

Appeal from Pike Circuit Court. — Hon. Theodore Bruere, Judge.

AFFIRMED.

John H. Haley for appellant.

The sheriff's deed to J.D. Hostetter vested no title in him and defendant (respondent), Zuma Givens, acquired no title to the land in controversy by the quitclaim deed from J.D. Hostetter and wife to her because the decree in partition rendered in the case of Hostetter v. Walker was void. Sec. 1721, R.S. 1939; Dennig v. Mispagel, 260 S.W. 72; Gullick v. Huntley, 46 S.W. 154, 144 Mo. 241; Hill v. Hill, 168 S.W. 1165, 261 Mo. 55; Pentz v. Kuester, 41 Mo. 447; Cashion v. Faina, 47 Mo. 133; Matlock v. Bigbee, 34 Mo. 354; Schwartz v. Dryden, 25 Mo. 572; Owsley v. Smith, 14 Mo. 153.

May and May for respondent.

(1) Under the terms of the said will of Samuel Harlow, the remainder to his said children became vested at his death giving them a right to convey same subject to the life estate of the widow, and the purchaser thereof the right to partition. Dunbar v. Sims, 283 Mo. 356; Byrne v. France, 131 Mo. 639. (2) There can be no question but what the remainder herein was vested. Union Natl. Bank in K.C. v. Bunker, 114 S.W. (2d) l.c. 196; Chew v. Keller, 100 Mo. 362; Dunbar v. Sims, 283 Mo. 356; Gardner v. Vanlandingham, 69 S.W. (2d) 947; Baker v. Kennedy, 238 S.W. 790; Evans v. Rankin, 44 S.W. (2d) l.c. 646; Hammer v. Edmonds, 36 S.W. (2d) l.c. 934. (3) The remainder devised by Samuel Harlow having vested, was subject to partition. Sec. 1709, R.S. 1939; McKnight v. Hagemeir, 209 S.W. 902; Willhite v. Rathburn, 61 S.W. (2d) 708 (6). (4) The cases cited by appellants are not in point. Gullick v. Huntley, 144 Mo. 241; Hill v. Hill, 261 Mo. 55.

BRADLEY, C.

Action by plaintiff (appellant) and others to partition 90 acres of land in Pike County. The trial court found that plaintiffs had no interest in the land; that defendant, Zuma Givens, was the sole owner, and plaintiff, Roy Harlow, appealed.

Samuel Harlow, who died testate on October 5, 1896, owned the land at the time of his death. He left surviving his widow, Elizabeth Harlow, and 9 children. Defendant Zuma Givens was by the last wife, Elizabeth. The will was duly probated October 9, 1896.

The second clause of the will provided: "I give, will, and bequeath to my wife Elizabeth Harlow, 90 acres of land as follows (here described) for and during the term of her natural life and after her death the remainder I will to all my children hereinafter named in equal parts." Prior to January 13, 1898, J.D. Hostetter acquired the interest in the land of four of testator's children, and on January 13th, Hostetter filed suit to partition the land...