Holmes v. McGee

• Decision Date: 31 January 1859
• Citation: 27 Mo. 597
• Parties: HOLMES, Plaintiff in Error, v. MCGEE, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 597

HOLMES, Plaintiff in Error,

v.MCGEE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1859.

1. In an action for partition the plaintiff alleged that himself and defendant were joint owners of a certain tract of land; that they were “equal partners” in the same; that the said tract had been divided into town lots, a part of which had been sold; that the residue of the lots were the joint property of the plaintiff and defendant; and prayed for partition of said remaining lots. The court sustained a demurrer to this petition. Held, that the demurrer was improperly sustained; that if the plaintiff and defendant held the land as partners, and the affairs of the partnership were unadjusted, the land being chargeable with debts of the firm, or with a balance due the defendant, this matter should be set up in an answer; that, no such defense being interposed, partition might be made of the lots remaining unsold.

Error to Kansas Court of Common Pleas.

E. B. Ewing, for plaintiff in error.

I. No facts are averred in the petition showing a partnership between the parties to the suit. The words “equal partners” denote the share or extent of interest of each of the parties. If the land is partnership property, it still may be partitioned. The legal title is vested in plaintiff and defendant jointly.Hovey, for defendant in error.

I. The plaintiff seeks to convert a regular petition for account and settlement of a partnership transaction into a statutory action for partition. The petition gives no description of the “premises sought to be divided.” (R. C. 1855, p. 1111, §3.)

RICHARDSON, Judge, delivered the opinion of the court.

This was a proceeding for partition. The petition states that the plaintiff and defendant are the joint owners of a tract of forty acres of land, conveyed to them by Riddlesberger, and that they are “equal partners” in the same, that the tract had been subdivided into town lots, a designated number of which had been sold; and that the residue of the lots were the joint property of the plaintiff and defendant, of which partition was asked. A demurrer was filed and sustained, on the ground that it appeared from the petition that the parties were partners in the land, and it was not averred that the partnership had been dissolved, or that the partnership debts had been paid; and also because the land having been laid off into lots, blocks and streets, the plaintiff had no right to partition of the original tract.

If the land...