Joerger v. Joerger

• Decision Date: 31 January 1906
• Citation: 193 Mo. 133,91 S.W. 918
• Parties: JOERGER et al. v. JOERGER.
• Court: Missouri Supreme Court

91 S.W. 918

193 Mo. 133

JOERGER et al. v. JOERGER.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. DIVORCE—PROPERTY HELD BY ENTIRETY— EFFECT OF DIVORCE.

Where a husband and wife were tenants by entireties, their divorce destroyed such tenancy, and they became tenants in common.

2. TRUSTS — CONSTRUCTIVE TRUST—FURNISHING CONSIDERATION FOR CONVEYANCE — BURDEN OF PROOF.

On the issue as to whether land which was deeded to a husband and wife was paid for with the wife's means, the burden of proving such to have been the case was upon her.

3. SAME—EVIDENCE—SUFFICIENCY.

On the issue as to whether land deeded to a husband and wife was purchased with the means of the wife, evidence held insufficient to show such to have been the case.

4. PARTITION—DIVISION IN KIND.

Where, in partition, the property consisted of two city lots and a tract of land, and one of the parties had a half interest, and five others were entitled to one-tenth each, a decree for a sale on the ground that the property was not susceptible of equal division was proper.

Appeal from St. Louis Circuit Court; Warwich Hough, Judge.

Partition by John J. Joerger and others against Christine Joerger. From the judgment awarding partition, defendant appeals. Affirmed.

Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant. Rassieur, Schnurmacher & Rassieur and Henry Boemler, for respondents.

GANTT, J.

This is a proceeding originally brought by Anton Joerger, Edward P. Luecking, and H. J. Krembs against Mrs. Christine Joerger, for the partition of two pieces of real estate, to wit: Lots 10 and 11 of the subdivision by James B. Clay of lots 1 to 5, in block 23 of Old Orchard tract, and in block 4441 of the city of St. Louis, said lots having together a front of 50 feet on the south side of Natural Bridge Road, by a depth to an alley southwardly of 179 feet and 6 inches, and bounded west by lot 9, north by Natural Bridge Road, east by lot 13 of said block, and south by said alley, conveyed to said Joerger by deed dated the 18th day of September, 1879, recorded in Book 617, page 215, in the recorder's office in the city of St. Louis. And a tract of land situated in the county of Ste Genevieve in the state of Missouri, all of the N. ½ of the S. W. ¼ of section 2, township 38, range 6 E., and the north part of the S. ½ of said S. W. ¼ of section 2, township 38, range 6 E.; the last-described land containing about 45 acres and containing in the aggregate 125 acres more or less. Judgment for partition and an order of sale of said land was rendered at the February term, 1903, of the circuit court of the city of St. Louis. The defendant filed her motions for new trial and in arrest of judgment, which were by the court overruled, and defendant was granted an appeal to this court.

During the pendency of this appeal in this court, and on the 8th day of May, 1904, Anton Joerger, the husband, departed this life testate, and by his last will and testament devised his interest in said estate to John A. Joerger, Paul Joerger, Elizabeth Joerger, Lena Benson, and Christine Hammond, and suggestion of the death of the said Anton Joerger was duly made and scire facias ordered to the said devisees to show cause why they should not be substituted as plaintiffs in the place and stead of said Anton Joerger, which said scire facias was duly issued and served upon the said devisees, in January and February, 1905, commanding them to appear in this court on the first day of the April term of this court for the year 1905. And no cause to the contrary having been shown, it was ordered that this cause stand revived in their names, together with the plaintiffs Luecking and Krembs.

The interest of the said Krembs results from the giving of a note by the said Anton Joerger, on May 24, 1900, to the said Krembs for the sum of $550, payable in one year thereafter, and the execution and delivery of a deed of trust to the plaintiff Edward P. Luecking, as trustee on the undivided one-half interest of the said Anton Joerger in said real estate, and lots on the Natural Bridge Road as above described; the same not having been satisfied when this action was commenced, nor at the date of the judgment. The answer of Mrs. Christine Joerger admitted the marriage of Anton Joerger and herself, and her divorce from the plaintiff on the 25th of January, 1900, and that the description of the property mentioned in the petition was correctly set forth, and then denied all the other allegations of the petition. The answer then set up, by way of cross-bill, that all the real estate described in the petition was the sole and separate estate of the defendant, Christine Joerger, purchased with her own money, and that she had expended large sums of money, $1,000, improving, repairing, and maintaining the same, and that whatever rights the plaintiffs Edward P. Luecking and H. J. Krembs had acquired in the property they had obtained subsequent to the institution of this suit and the filing of the defendant's answer herein, and with full knowledge of defendant's right in the premises, and prayed a decree that the property described should be adjudged the sole and separate estate of the defendant, Christine Joerger, and, in the event the same should not be found to be her separate estate, that she should have a lien on the said property superior to the plaintiffs' for the sums expended by her for improvements and repairs, and such additional relief as she might merit. The reply was a general denial of the new matter set up in the answer. The cause was referred by consent of parties to George F. Beck, Esq., a member of the bar, to be tried, who heard the evidence, and on May 9, 1901, filed his report therein, with a transcript of the evidence and testimony taken before him. The evidence tended to prove, without contradiction, that Anton Joerger and Christine Joerger, the defendant, were married in Cincinnati, Ohio, in 1854. The plaintiff offered and read in evidence a deed from Pattie D. McCowan and B. H. McCowan, her husband, of Jefferson county, Ky., dated September 18, 1879, to Anton Joerger and Christine Joerger, recorded September 30, 1879,...