Holloway v. Holloway

• Decision Date: 18 March 1889
• Citation: 11 S.W. 233,97 Mo. 628
• Parties: HOLLOWAY et ux. v. HOLLOWAY et al.
• Court: Missouri Supreme Court

11 S.W. 233

97 Mo. 628

HOLLOWAY et ux. v. HOLLOWAY et al.

Supreme Court of Missouri.

March 18, 1889.

PARTITION — JUDGMENT FOR RENTS AND PROFITS.

1. In partition, while the court has jurisdiction to take account of the rents and profits received by defendant as co-tenant in possession, and charge them upon his share of the proceeds of sale, it has no authority to declare the amount to which plaintiff is entitled on account thereof a special lien on the growing crops on the premises, and to order that a special execution issue therefor; and such order cannot have the effect to convert an otherwise interlocutory order into a final judgment, from which an appeal would lie.

2. Adverse possession by defendant in partition, without show of any title to plaintiff's undivided interest therein, and without any evidence casting a doubt upon plaintiff's title thereto, is not sufficient to defeat the partition suit, and compel a resort to ejectment.

3. That a cause came on for trial and was heard in its regular order under the rules of the court, at a time when counsel for defendant, owing to a different rule in an adjoining circuit, did not expect it to come on and in consequence he and his client were not present, is not, in the absence of misrepresentation or bad faith on the part of the opposite counsel, ground for a new trial.

Appeal from circuit court, Cass county; NOAH M. GIVAN, Judge.

Adams & Field and J. H. Kyle, for appellants. Railey & Burney, for respondents.

BRACE, J.

This is an action for partition and sale of real estate. The amended petition, on which this case was tried, is substantially as follows: That plaintiffs are husband and wife; that on the 9th day of October, 1883, said plaintiff George C. Holloway, husband, was the owner of the real estate sought to be divided; that on that day he executed a deed of trust on all of said lands, except 20 acres, to the defendant Ingram, to secure a note of $4,000 and interest, due from said Holloway to the defendant the Missouri Trust Company; that afterwards, on the 1st of November, 1883, the said George W. Holloway conveyed an undivided half interest in all the land sought to be divided to the defendant John M. Holloway, subject to said deed of trust, on all of it, except the said 20 acres; that afterwards, on the 2d of April, 1884, the said John M. Holloway executed a deed of trust on his undivided half interest in said land to defendant Henry Cordell, to secure the payment of his note for $2,384, payable to George W. Holloway, with interest; that afterwards said note was assigned by the said George W. to the said defendant T. P. Holloway, who is the present owner thereof; that afterwards, on the 7th of April, 1884, the said George W. and wife, subject to said deed of trust held by the said trust company, conveyed his remaining undivided half interest in said lands to the said John M.; that on the same day the said John M. executed a deed of trust on said lands to the said Cordell, to secure the payment to the said George W. of a note executed by the said John M. to the said George W., for $3,200, and interest; that afterwards, on the 8th day of April, 1884, the said George W., for value, assigned and delivered said note and deed of trust to the plaintiff S. A. G. Holloway, his wife; that afterwards, on the 1st day of January, 1885, the said John M. and wife, in payment and discharge of said note and deed of trust, by warranty deed conveyed an undivided half interest in said real estate to the plaintiff S. A. G. Holloway; that no part of the money due the said defendant T. P. Holloway has ever been paid; that by reason of the premises, the said S. A. G. Holloway is the owner in fee as her ordinary legal estate of the one undivided half interest of said real estate, subject to the deed of trust held by said trust company, and the said John M. Holloway is the owner of the remaining undivided half interest, subject to said deed of trust, and also subject to the deed of trust held by the said T. P. Holloway on his undivided interest; that the interest on the note secured by the deed of trust held by the trust company due for April and October, 1886, amounting to $240, has been paid by the said S. A. G. Holloway, and that on the 1st of April, 1886, she also paid $120 interest on said note, and taxes on said real estate amounting to $149; that the rental value for said real estate for the year 1885 was $1,000, the whole of which said John M. Holloway collected, realized, and retained, and refused to allow plaintiffs any part thereof; that said defendant is insolvent; that by reason of the interests, incumbrances, etc., said real estate cannot be divided in kind; "wherefore plaintiffs pray the court to render a decree for the sale of the whole of the real estate aforesaid; that the proceeds thereof be divided among the parties according to their interests therein; that the notes and mortgages due the Missouri Trust Company be first paid off in full, or the land sold subject to the same, as may to the court seem to be to the best advantage of all concerned; that one-half of the balance be paid to said S. A. G. Holloway, together with whatever may be due her from said John M. Holloway for interest and rents as aforesaid; that the notes and mortgages due to T. P. Holloway be paid out of the interest of John M. Holloway as aforesaid; and that the said last-mentioned notes be paid, as well as the amount due to S. A. G. Holloway on account of the rents and interest aforesaid, the balance to be paid to said John M. Holloway, and for such other and further relief as to the court may seem right and proper."

To this petition the defendant John M. Holloway, on the 16th of March, 1886, answered as follows: "Now comes John M. Holloway, and for his separate answer to the petition of plaintiffs, denies each and every allegation contained therein, save what is hereinafter expressly admitted; wherefore he asks judgment. And for a second and further defense to this action this defendant states that he is in the actual and exclusive possession of the whole of said real estate, and was at, and has been ever since, the institution of this case; that so far as the said plaintiff S. A. G. Holloway is concerned, she has no possession or right, title, interest, or estate in said land; that at the time of the alleged conveyance to S. A. G. Holloway her co-plaintiff herein was indebted to various persons, in the aggregate, in excess of ten thousand (10,000) dollars, being as much as, or in excess of, the value of said George W. Holloway's property, real and personal, and for that reason and consideration and no other than the return to this defendant of his note by said Geo. W. Holloway, and for no consideration whatever from the said S. A. G. Holloway, said conveyance was made in her name and delivered to the said Geo. W. Holloway, but not to her, to hinder, delay, defraud, and deceive his creditors, by thus covering up his property; that one J. H. Arnold, one of such creditors, obtained judgment against said Geo. W. Holloway and defendant for the sum of ______ dollars, at Kansas City, in the circuit court of Jackson county, state of Missouri, at the April term of said court, in 1885. That afterwards, at the instance of said Arnold, an execution was duly issued on said judgment to the sheriff of Cass county, Mo., and at the last November term of the circuit court of said county of Cass, state of Missouri, all the right, title, interest, and estate of the said Geo W. Holloway in the real estate in controversy was duly sold and conveyed by said sheriff to one James M. Holloway, who is not a party to this action; and the said James M. Holloway and this defendant are the sole owners of said real estate, and neither of plaintiffs have now any right or estate therein." The other defendants did not answer.

The plaintiff replied to the answer of John M. Holloway, denying all its allegations, on the 20th day of July, 1886; and on the same day, the cause coming on for trial, the court found the issues for the plaintiff, made a finding of the facts substantially as set out in the petition, and that said J. M. Holloway is justly indebted to the said S. A. G. Holloway in the sum of $254.50, being one-half of the sum paid by her for interest and taxes, as stated in the petition; "that the rental value of the real estate mentioned in plaintiff's petition for year commencing March 1, 1885, and ending March 1, 1886, was $1,005; that the rental value of said real estate from March 1, 1886, to March 1, 1887, is $825; that said John M. Holloway has held possession of said real estate since March 1, 1885, and has refused to allow said plaintiffs or T. P. Holloway to enter and hold or enjoy the same, or any portion thereof, and still holds the same, and is receiving all profits of same, although demand has been made to jointly occupy same with him, after he had conveyed to said S. A. G. Holloway the undivided one-half thereof by warranty deed; that said John M. Holloway is justly indebted to said S....