King v. Howard

• Decision Date: 31 March 1858
• Citation: 27 Mo. 21
• Parties: KING, Plaintiff in Error, v. HOWARD et al., Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 21

KING, Plaintiff in Error,

v.HOWARD et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. Where a tenant in common in lands conveys his share to one of his cotenants, he cannot have the same partitioned and set apart to him for any purpose.

2. An agreement to refer a matter in dispute to arbitrators cannot be specifically enforced.

Error to St. Louis Land Court.

The plaintiff, Virginia King, sets forth in her petition that she inherited from her mother, Genevieve Howard, an interest of one-eighth in a certain lot in the city of St. Louis; that she was entitled to one-eighth on the 28th of August, 1846, and the other children respectively to one-eighth; that on said 28th of August, 1846, “she was induced to make an arrangement with the defendant, Louis Howard, by which she conveyed to him her interest in said lot for the sum of $600, with the agreement on his part that when her said interest should be ascertained by partition it should be valued by appraisers--one to be selected by each--and on their failing to agree that they should choose a third person, who, in connection with themselves, should appraise and estimate the value of her said ascertained interest, and if its value as ascertained should exceed the said $600, said excess should be paid by the said Louis Howard to the said plaintiff, and if it should fall short of the said $600, plaintiff was to pay him the difference; all of which is evidenced by his agreement under seal and duly recorded, herewith filed, marked C, which is a lien or mortgage on her said interest for the faithful fulfilment thereof. Plaintiff states that the said Louis Howard has not, nor has any one else, caused a partition to be made of said lot among the owners thereof, whereby the interest of said plaintiff was separated and identified for the purpose aforesaid, although more than ten years have elapsed since the date of said agreement, and although the said plaintiff has frequently requested him to have a partition made for said purposes. Plaintiff applied to the defendant to have said partition made, which he refused to do. Plaintiff therefore prays that your honor, on a full hearing of the matters herein set forth and alleged, will grant a decree that the interest to which the plaintiff was entitled in said lot at the date of said deed and agreement, to-wit: one-eighth, be partitioned, separated and located by metes and bounds for the purpose of ascertaining its value in the manner set forth in said agreement, and in such manner as shall be most equitable and just with all parties, saving and protecting the rights of the plaintiff; and that commissioners be appointed for that purpose. Plaintiff also prays that your honor will cause to be appointed appraisers to value said interest, after it has been ascertained, in case of the refusal or delay of the said defendant, Louis Howard, to make a selection on his part, and all such other relief,” etc.

The defendants demurred to this petition. The demurrer was overruled. The defendants then answered, averring that petition had been made; that plaintiff's interest had been set apart to Louis Howard. Evidence was introduced tending to show a verbal partition as alleged. The cause was submitted to the court without a jury. The court, at the instance of the plaintiff, gave the following instruction, or declaration of law: “If the court find from the evidence that there has been no partition according to law of the real estate to which the plaintiff was a party, or in which she afterwards acquiesced, then the plaintiff is entitled to recover her interest in the estate of her mother, Genevieve Brazeau, deceased, subject to the conditions of the agreement made between herself and the defendant.” The court gave the following declaration of the law at the instance of defendants: “The court declares the law to be that if it has been established by the evidence that partition of the premises in the amended petition described was made among the heirs of Genevieve Howard (or Brazeau), plaintiff cannot recover in...