Jelly v. Lamar

• Decision Date: 29 March 1912
• Citation: 145 S.W. 799
• Parties: JELLY v. LAMAR et al.
• Court: Missouri Supreme Court

145 S.W. 799

JELLY v. LAMAR et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1912.

1. HUSBAND AND WIFE (§ 14) — DEEDS TO HUSBAND AND WIFE — CONSTRUCTION.

Since a partition deed merely adjusts the rights of possession, and confers no new or additional estate, a partition deed to husband and wife of her individual allotment in a tract did not create an entirety of estate so as to entitle the husband to take as survivor; he being merely a tenant by the curtesy on his wife's death, through existence of their children.

2. HUSBAND AND WIFE (§ 14)—JOINT TENANCY.

A husband's payment of a mortgage out of the proceeds of land allotted to his wife in partition, but deeded to both of them, does not show payment of consideration making him a joint tenant with her.

3. SUBROGATION (§ 34) — MORTGAGES—VENDEE OF PERSON MAKING PAYMENT.

Where land allotted to a wife under partition was deeded to her and her husband subject to liens merged in a mortgage, a purchaser of the land from the surviving husband or his heirs and widow standing in his shoes are entitled to subrogation through his payment of the mortgage when he purchased on it appearing that his title failed because the husband had an estate by the curtesy only.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Nora N. Jelly against Albert Lamar and others. From the decree, certain defendants appeal. Reversed and remanded.

Duncan & Utz, for appellants. Allen, Gabbert & Mitchell, for respondent.

LAMM, J.

Certain defendants, the children and widow of John D. Noble (the latter dying intestate pending this suit), appealed from a decree in equitable partition. Defendants Albert and Charles Lamar and plaintiff are children of Hania Lamar, deceased, and William Lamar. Plaintiff and defendants Albert and Charles are on the same side of this controversy; hence the last two do not appeal.

Fetching a small compass about it, the controversy is this: Hiram J. Hurst died about 1880, intestate, seised of 80 acres of land, leaving his widow, Henrietta, and three married daughters, Launrana Noble, Sarah E. Blackstun, and Hania Lamar. Launrana was the wife, and is now the widow, of said John D. Noble. This land was incumbered with a mortgage, and there were several judgments against Hiram J. Hurst. We infer all were liens on the land. Presently (all the husbands taking part, including Noble) there was a domestic partition between Henrietta and her three married daughters. By that partition Hania Lamar was allotted 19 acres of the 80, and this suit relates to her parcel. Presently they made conveyances to each other in consummation of this domestic partition. The partition deed, instead of running to Hania Lamar, purported to convey her allotment to "William Lamar and Hania Lamar, his wife." There are record indications that the partition deeds to the other married daughters were also conveyances of this sort. The Lamars took possession of Hania's parcel; and in 1902 or 1903 Hania Lamar died intestate, leaving her husband, William, surviving and several young children, to wit, the plaintiff Nora (now married to Jelly) and the defendants Albert and Charles Lamar. In 1904 William, the surviving husband of Hania Lamar, assumed to convey the land in question to his brother-in-law John D. Noble by a general warranty deed. Since that time and up to his death, after the institution of this suit, Noble held possession. Since his death his children and widow hold possession. The husband of Hania Lamar, said William, is yet alive. The Nobles contend, among other things, that their ancestor, John D., got title in fee by said conveyance of William Lamar, and that they take by inheritance from him. Contra, the Lamar children claim that nothing but a life estate passed by that deed. Such is one of the issues.

The decree was out and out in favor of the Lamar children, and took no note of an incumbrance, presently mentioned. The land was partitioned between the three, share and share alike, and was ordered sold, subject, however, to the life estate of William Lamar as tenant by the curtesy. The court further decreed that said life estate passed to John D. Noble, and now rests vested in his widow and children. Under the facts of this record, the partition deed vested no title at all in William Lamar. Such deed confers no new title. In domestic partition the rule is that each heir takes, not by the deed, but by inheritance from the ancestor. Such deed merely severs and adjusts the right to possession. It confers no new or additional estate. Its effect is that henceforward each heir holds his share in severalty; the title being already in him by descent cast. Such was the common law, and such is the doctrine in this jurisdiction. Partition deeds are...