Joerger v. Joerger
| Decision Date | 31 January 1906 |
| Citation | 91 S.W. 918,193 Mo. 133 |
| Parties | JOHN J. JOERGER et al. v. CHRISTINE JOERGER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Affirmed.
Geo. W Lubke and Geo. W. Lubke, Jr., for appellant.
(1) This being a suit for partition, and the answer of defendant having pleaded facts entitling her to equitable relief, this action is an equitable one and this court will review the whole record as if the suit had originated in this court. Sheridan v. Nation, 159 Mo. 27; Railroad v Brandon, 81 Mo.App. 1; Robertson v. Shepherd, 165 Mo. 360; Caldwell v. Wright, 88 Mo.App. 604; Roth v. Wire Co., 94 Mo.App. 236. (2) The earnings of defendant and the profits of the business conducted by her after 1875 were her separate property and her husband could not acquire any interest therein unless she consented thereto in writing. R. S. 1899, sec. 4340; Rogers v. Bank, 69 Mo. 560; Broughton v. Brand, 94 Mo. 169; Owings v. Wiggins, 133 Mo. 630; Alkire Grocer Co. v. Ballinger, 137 Mo. 369; Case v. Espenchied, 169 Mo. 215; Lilliard v. Wilson, 178 Mo. 145. And this is true notwithstanding the fact that the marriage between the parties was contracted prior to 1875. Winn v. Riley, 151 Mo. 61. (3) The purchase of real estate by plaintiff Anton Joerger, while the husband of defendant, with her earnings or the profits of her business, either in whole or in part, must be held to be a purchase for defendant in whole or pro tanto notwithstanding she consented thereto, unless her consent be evidenced by a writing as required by the statute. Bowen v. McKean, 82 Mo. 594; Broughton v. Brand, 94 Mo. 169; McGuire v. Allen, 108 Mo. 403; Seay v. Hesse, 123 Mo. 450; Cooper v. Standley, 40 Mo.App. 38; McLeod v. Venable, 163 Mo. 536. (4) In partition all the rights which the several co-tenants have against each other respecting the common property may be adjusted and one tenant credited with repairs and improvements and another charged with rents. Gunn v. Thurston, 130 Mo. 339; Holloway v. Holloway, 97 Mo. 629; Spitts v. Wells, 18 Mo. 468. (5) Even though the Natural Bridge road property was not the separate estate of defendant, she was entitled either to partition in kind so that the portion improved by her might be set out to her with the improvements and repairs, thereon, or she was entitled to contribution from plaintiff for the value of the improvements and repairs. Spitts v. Wells, 18 Mo. 468; Green v. Putnam, 1 Barb. 507; Hall v. Piddock, 21 N.J.Eq. 314; Brookfield v. Williams, 2 N.J.Eq. 341; Dougherty v. Crowell, 11 N.J.Eq. 203; Mahoney v. Mahoney, 65 Ill. 406; Martindale v. Alexander, 26 Ind. 104; Freeman on Co-tenancy & Partition (2 Ed.), sec. 509. This is true in equity, though not at law. McDearmon v. McClure, 31 Ark. 559; Williams v. Coombs, 88 Me. 183. But the repairs must be such as are absolutely necessary. Dech's Appeal, 57 Pa. 472; Farrand v. Gleason, 56 Vt. 663; Fowler v. Fowler, 50 Conn. 256; Alexander v. Ellison, 79 Ky. 148; Denman v. Prince, 40 Barb. 217; Clark v. Plummer, 31 Wis. 442. (6) If plaintiffs were entitled to partition, there being no evidence that the property in question could not be partitioned in kind, but on the contrary that it was susceptible of such division, it was erroneous to order a sale of the property and division of the proceeds. Rhorer v. Brockhage, 15 Mo.App. 16; R. S. 1899, sec. 4425.
Rassieur, Schnurmacher & Rassieur and Henry Boemler for respondents.
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 ten and eleven of the subdivision by James B. Clay of lots one to five, in block 23 of Old Orchard tract and in block 4441 of the city of St. Louis, said lots having together a front of fifty feet, on the south side of Natural Bridge road, by a depth, to an alley southwardly, of one hundred and seventy-nine feet and six inches, and bounded west by lot nine, north by Natural Bridge road, east by lot thirteen 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 north half of the southwest quarter of section two, township thirty-eight, range six, east, and the north part of the south half of said south-west quarter of section two, township thirty-eight, range six, east, the last-described land containing about forty-five acres, and containing in the aggregate one hundred and twenty-five 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 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 subsequently to the institution of this suit and the filing of the defendant's answer herein, and with full knowledge of defendant's rights 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, Kentucky, dated September 18, 1879, to Anton Joerger and Christine Joerger, recorded September 30, 1879, in book 617, page 215, of the St. Louis recorder's office, which was an ordinary warranty deed and conveyed the property first described in the petition, located in the city of St. Louis, on the Natural Bridge road. The habendum clause of the deed is as follows: "To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, immunities and improvements thereto belonging or in anywise appertaining unto the said parties of the second part, and to the survivor of them and to the heirs and assigns of such survivor." Plaintiff also offered and read in evidence, a deed from August Kreiger to Anton Joerger and Catherine Joerger, husband and wife, dated August 28, 1890, recorded in book 45 at page 217 of the recorder's office of Ste. Genevieve county, on August 30, 1890, conveying the property secondly described in the said petition and situated in said Ste. Genevieve county. This deed is also a general warranty deed and the habendum clause is as follows: "To have and to hold the same, together with all the...
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