Holloway v. Holloway
| Decision Date | 18 March 1889 |
| Citation | 11 S.W. 233,97 Mo. 628 |
| Parties | Holloway et al. v. Holloway, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. N. M. Givan, Judge.
Appeal dismissed.
R. H Field and J. H. Kyle for appellant.
(1) The order of sale and partition herein shows error on its face in view of the fact found in the decree "that said John 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 * * * although demand has been made to jointly occupy the same with him." Gravier v. Ivory, 34 Mo. 522; Lambert v Luenthall, 26 Mo. 473; Shaw v. Gregoire, 41 Mo. 407. (2) A tenant in common is not liable to his co-tenants for rent unless he actually excludes them from joint occupancy or use of the property. Regan v. McCoy, 29 Mo. 356. The absence of an allegation in the petition, that plaintiffs were so excluded by appellant, is fatal to the judgment for rent rendered against him by the court below, and this defect is not supplied by the proof offered at the trial as found by the court. This conclusion follows as a necessary corollary to the proposition of law maintained in the case of Ragan v. McCoy, just cited, for to hold otherwise is to release plaintiffs from the simple rule of requiring the statement of sufficient facts to constitute a cause of action that exists and applies to all cases. Such defects can be raised for the first time in the appellate court. Weil v. Green County, 69 Mo. 281. (3) The amount of the judgment rendered for rent against appellant is manifestly excessive -- it is for $ 925 and for the years 1885, 1886 and 1887, when in the petition only the half of $ 1,000 ($ 500) and rent for the year 1885 is claimed. This suit was begun October 13, 1885. None of the rent allowed by the judgment as appears upon the face thereof had accrued until March following. Besides, there was no claim in the petition for rent that might accrue after the filing of the suit. The judgment cannot stand. R. S. sec. 3511; Moore v. Dixon, 50 Mo. 424. (4) It appears from the face of the findings and decree that Mrs. S. A. G. Holloway's estate in the real property in question was a general and not a separate one. Such being the case the finding and judgment for rent should have been in the name and in favor of her husband and co-plaintiff, George W. Holloway, and being on its face solely in her favor it must fall under the rule that the husband only is entitled to recover the rents, issues and profits from such an estate of the wife in lands. 1 Kent's Com. * 130, * 131; Dyer v. Wittler, 89 Mo. 93. The wife is neither a necessary nor even a proper party to such a recovery. Cooper v. Ord, 60 Mo. 430; Wilson v. Garaghty, 70 Mo. 517; Kannaga v. Railroad, 76 Mo. 208; Bledsoe v. Simms, 53 Mo. 305; Gideon v. Hughes, 21 Mo.App. 528. (5) The appeal granted in this cause was not premature and was properly allowed by the circuit court. This case is not governed by section 3391 of the statutes and decisions thereon. That section expressly limits its operation to suits in partition brought under that chapter (chap. 56.) That chapter nowhere authorizes the hitching onto the partition suit therein authorized a call for an accounting for rents, taxes paid and other disbursements, and a recovery of money therefor, as herein sought. There is a judgment for rent herein, with an order for an execution to issue, and this is as final as it could be made by the circuit court. This judgment for rent alone is enough to sustain the appeal granted. The State ex rel. v. Sedden, 93 Mo. 522, 523.
Railey & Burney for respondents.
(1) There is nothing in the statute concerning partition which in any way curtails the jurisdiction of a court of equity. Real Estate Sav. Inst. v. Collonious, 63 Mo. 295; Spitts v. Wells, 18 Mo. 471. (2) Defendant was in possession and wholly insolvent. Ejectment could only have been maintained by the husband, as the title of S. A. G. Holloway was simply a legal title. The interests of the encumbrancers could not have been protected in such an action. The interest and taxes paid by Mrs. Holloway -- and for the payment of which defendant was equally liable -- could not be taken into account in the ejectment suit. What then would be gained by ejectment proceedings? The wife could only have her equities adjusted and rights protected by joining her husband in an equitable partition. It being necessary for a court of chancery to exercise jurisdiction for one purpose, to avoid a multiplicity of suits, and avoid useless litigation, it acquired jurisdiction of the subject matter, and of all the parties interested therein; it therefore had, and did exercise the right to do complete justice between the parties. Real Estate Sav. Inst. v. Collonious, 63 Mo. 295; Freeman on Cotenancy and Partition, (2 Ed.) sec. 512; Dameron v. Jameson, 71 Mo. 97. (3) "It was a rule at common law, known as 'express aider,' that any omission to state a material fact, either in declaration or plea, would be obviated if the pleading of the opposite party put the matter in issue." Hughes v. Carson, 90 Mo. 402, 403; Garth v. Caldwell, 72 Mo. 630; Bliss on Code Plead. (2 Ed.) sec. 437; United States v. Morris, 10 Wheat. 246; Slack v. Lyon, 6 Pick. 62; Whittemore v. Ware, 101 Mass. 352; Warner v. Lockerby, 28 Minn. 28; Irwin v. Shaffer, 9 Ohio St. 43. The omission of plaintiffs to allege in direct terms in their petition that they were excluded by appellant from the possession of the land was therefore cured by defendant's averment that he was in possession of the land. (4) The judgment for rents is not excessive. (5) The circuit court had the undoubted power to declare a lien on the crop raised by defendant from March, 1886, to March, 1887, in favor of plaintiffs, for one-half of said rent. Such power inherently belongs to a court of chancery, in order that complete justice may be done in the premises. (6) It is contended by appellant that it appears upon the face of the proceedings, that the real estate in controversy is Mrs. Holloway's legal estate, and that, therefore, the husband alone could sue for the rent. The authorities cited have no application to the case at bar, as will appear upon the most casual examination of same; and even if they apply, as the matters complained of appear upon the face of the petition, advantage could only have been taken thereof by defendant on a demurrer to the petition. Walker v. Deaver, 79 Mo. 672, cas. cit. (7) No appeal lay in this case. Murray v. Yates, 73 Mo. 13; Turpin v. Turpin, 88 Mo. 339, 340. But, as all the propositions involved in the case have been discussed as though the case stood here regularly upon appeal, and in order to avoid the necessity of having the case brought back for review, and thereby cause further delay, the court is asked, in accordance with its ruling heretofore, to pass upon all the questions involved herein. Turpin v. Turpin, supra.
OPINION
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 ninth 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 twenty acres to the defendant Ingram to secure a note of four thousand dollars and interest, due from said Holloway to the defendant, the Missouri Trust Company; that afterwards on the first 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 twenty acres; that afterwards, on the second 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 seventh 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 eighth 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 first 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 ...
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