Johnson v. Noble
| Citation | 24 Mo. 252 |
| Parties | JOHNSON, BY HIS NEXT FRIEND, Appellant, v. NOBLE et al., Respondents. |
| Decision Date | 31 January 1857 |
| Court | United States State Supreme Court of Missouri |
1. An infant cannot be a party plaintiff in a statutory proceeding for partition.
Appeal from Buchanan Court of Common Pleas.
Petition for a partition of real estate by Levi Johnson, an infant, by his next friend, R. H. Wrinkle. A demurrer to the petition on the ground of the incapacity of the plaintiff to sue as a party plaintiff in a suit for partition was sustained.
Vories, for appellant.
It is obvious, from the tenor of the plaintiff's petition, that this is an attempt to do, by means of the process in partition, what can only be done by a direct proceeding, instituted for that purpose. The petition takes it for granted that, if a judgment for partition is rendered, it will result in a sale of the premises sought to be divided. No one can be blind to the selfish and interested motives which often prompt applications for the partition of lands, in which the rights of infants are concerned. Such applications usually terminate in a sale, whereby their lands are sacrificed and passed away to those who have been instrumental in bringing about a division of them. It is a rule of law that a guardian cannot convert the real estate of his ward into personalty. Courts of chancery can authorize such conversions under particular circumstances. Chancellor Kent says the power resides in a court of chancery to change the property of infants from real into personal, and from personal into real estate, whenever it appears to be manifestly for the infant's benefit. (2 Kent, 242.) We all know how orders in partition for the sale of land are obtained. The commissioners appointed to make partition listen to the suggestions of the interested in many cases, never go upon the land to be divided; and, if it is the desire of the parties, they report, as a matter of course, that a partition in kind cannot be made, and an order of sale follows. By this means the rights of infants are sacrificed, as there is usually no one to be found to protect their interests when the sale is made. Courts cannot be too sedulous in watching the rights of infants in these proceedings; for they are made the means by which thousands of the helpless and unprotected are defrauded of their patrimony.
When applications are made in a direct proceeding to convert real into personal estate, the courts should be satisfied, from the...
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