Hartvedt v. Harpst

• Decision Date: 06 December 1948
• Docket Number: No. 20895.,20895.
• Citation: 216 S.W.2d 539
• Parties: HARTVEDT et al. v. HARPST.
• Court: Missouri Court of Appeals

216 S.W.2d 539

HARTVEDT et al. v. HARPST.

No. 20895.

Kansas City Court of Appeals. Missouri.

December 6, 1948.

Appeal from Circuit Court, Platte County; R. B. Bridgeman, Judge.

"Not to be published in State Reports."

Suit by Malvina Hartvedt and others against Otto Harpst for specific performance of a contract to divide certain realty and for partition of the realty according to terms of the contract. From an order of the court overruling a motion to set aside an adverse decree, defendant appeals.

Order affirmed.

Terrence Riley, of Platte City, and Simrall & Simrall, of Liberty, for appellant.

Walter J. Gresham, of Kansas City, for respondents.

BOYER, Commissioner.

The plaintiffs, respondents here, instituted this action for the purpose of securing a decree of specific performance of a contract signed by the parties, and for the partition of real estate according to the terms of said contract. The decree was for plaintiffs, and the appeal is from an order of the court overruling defendant's motion to set it aside. The motion is based on Sec. 1267, R.S.Mo.1939, Mo.R.S.A. § 1267.

The petition states that plaintiffs and the defendant are the owners in fee of certain described lands in Platte County, the same being an island in the Missouri River, being the same island described in patent from Platte County to Andrew Hartvedt, dated March 3, 1924, recorded in Book 98, page 132 of the deed records of said County. It is further stated that said island comprises some 1400 or more acres in one contiguous body; that the defendant entered into a written agreement with the plaintiffs wherein he agreed that plaintiffs were the owners of all of said island except a tract of 350 acres which should belong to the defendant, and that he should have a reasonable time to select said tract and to have same surveyed at his expense. A copy of said agreement was attached to the petition, marked Exhibit "A," and made a part thereof. The petition further alleged that the defendant has failed and neglected to select such tract and to have same surveyed, and has thereby unreasonably delayed plaintiffs in the use and enjoyment of their property, and that plaintiffs have no adequate remedy at law. It is also alleged that the land is susceptible of partition in kind by commissioners as provided by law.

The prayer of the petition was for a decree of the court requiring defendant to perform his contract of division; that he be required to make selection of said 350 acres and survey same at his expense, and if defendant failed to so select said tract that commissioners in partition be appointed by the court and directed to make such selection for the defendant and set off to him such tract of 350 acres as to them may seem best, and to employ a surveyor to make a survey thereof and report to the court; and that the costs be taxed against defendant. The contract which is the basis of this action, showing caption and signatures, is as follows:

"In the Circuit Court of Clay County, Missouri

"Malvina Hartvedt, Administratrix of the Estate of Andrew Hartvedt, deceased, Martha Madston, Carl Madston and Alfred Madston, Plaintiffs,

                             "No. 15653
                "Otto Harpst,                 Defendant
                             "Stipulation
                

"This agreement made and entered into this 15th day of June, 1945, by and between plaintiffs in the above entitled cause and the defendant in the above entitled cause,

"Witnesseth: In order to avoid further litigation in the above entitled cause and to completely compromise and settle all issues involved in this cause it is agreed that the defendant shall have the right to select three hundred fifty (350) acres of land out of the land described in his amended answer, and shall have a reasonable time, considering labor and weather conditions, in which to determine the location of said three hundred fifty (350) acres and to have the boundaries thereof surveyed so as to determine the same.

"If the three hundred fifty (350) acres of land so selected by defendant cuts across any roadway that may lead to remaining land the plaintiffs shall have a right to use such roadway in order that they may at all times have access to their land.

"A decree will be drawn by the respective attorneys representing the plaintiffs and defendant to be entered in this cause, such decree to provide that the defendant shall be the owner of the three hundred fifty (350) acres of land that he selects and the plaintiffs shall be the owners of the remaining land. The decree shall further provide that all the costs in this cause, except such costs as heretofore have been adjudged against defendant will be paid as follows: the plaintiffs shall pay one-half of such costs and the defendant shall pay one-half of such costs.

"Witness the hands of the parties hereto this 15th day of June, 1945.

                      "Malvina Hartvedt
                       Administrator of the
                       estate of Andrew Hartvedt
                       deceased, Malvina Hartvedt
                       Martha Madston, Carl Madston
                       and Alfred Madston, Plaintiffs
                      "By Oscar D. McCollum
                            Walter J. Gresham
                            Attys. for Plaintiffs
                      "Otto Harpst, Defendant
                "Approved:  James S. Simrall
                           "Terrence Riley
                           "Attorneys for Defendant."
                

The answer of defendant is the following:

"1. Comes now the defendant and for answer to the petition herein denies each and every allegation in said petition.

"2. Defendant states that plaintiff has no cause for partition.

"3. Defendant further states that there is another cause pending in Clay County Circuit Court wherein the rights of the parties to the subject matter contained in the petition herein have been adjudicated and final disposition is about to be made in that court."

The record then shows that on June 26, 1946, the cause was submitted to the court upon the evidence and exhibits then presented. There was a finding and decree for equitable partition as prayed. Commissioners were appointed to make partition in kind in accordance with the contract sued on. The judgment entry recites that on the 25th day of May, 1946, the cause came on for hearing before the court, the parties appearing by their respective attorneys. Thereupon defendant asked for a continuance for the purpose of giving him time to have a survey made of the 350 acres to be assigned to him under the contract made by the parties. It was then stipulated by the parties, with the approval of the court, that the matter be continued for thirty days and that if within that period the defendant had not made such survey then the court should render judgment for partition and appoint commissioners to make partition in kind as provided by law, and the cause was so continued upon such condition. The judgment entered June 26, 1946, further recited that on that day the cause came on for disposition pursuant to the stipulation for continuance, and that plaintiffs appeared by attorneys and asked judgment in accordance with the stipulation for the reason that defendant had failed to make the survey as agreed within the time allowed. The record states that the matter was thereupon submitted to the court upon the pleadings, stipulation, and the evidence and that the court found that plaintiffs were entitled to the relief prayed for. Whereupon, it was adjudged that defendant be and thereby was ordered and directed to perform the contract for settlement and division of land entered into June 15, 1945. And the court found that the defendant was the owner of an undivided 350 acres of the land described in the petition, and that the plaintiffs were the owners of the remainder of said land; that the land was capable of partition in kind, and that the 350 acres to which the defendant was entitled should be in a contiguous body as nearly as possible in the form of a rectangle or square, except where it might touch the shore line of the river; that defendant had failed to select and survey such tract and that such selection should be made for him by the commissioners who should survey same. The court ordered that the commissioners assign and set off the remainder of the land to plaintiffs as tenants in common and charge the cost of said survey to the defendant. The court named commissioners to make such partition.

Subsequent to the decree, the next record entry shows that on August 17, 1946, defendant filed a motion to set aside the decree, and on November 25, 1946, he filed an amended motion to set aside the decree. In this motion reference is made to the nature of the answer filed in the case; that counsel for defendant had been served with notice of a motion to strike said answer, and that said motion would be taken up with the court on the 25th day of May, 1946; that on that day the attorneys for plaintiffs and defendant were in court and argued said motion, but the motion was not filed...