Martin v. Martin

• Decision Date: 01 December 1924
• Parties: JOHN R. MARTIN and W. C. MARTIN, Appellants, v. CORA MARTIN, DOROTHY MARTIN, G. T. PENDLETON, and the BOONVILLE NATIONAL BANK OF BOONVILLE, MO., Respondents
• Court: Kansas Court of Appeals

266 S.W. 336

218 Mo.App. 617

JOHN R. MARTIN and W. C. MARTIN, Appellants, v. CORA MARTIN, DOROTHY MARTIN, G. T. PENDLETON, and the BOONVILLE NATIONAL BANK OF BOONVILLE, MO., Respondents

Court of Appeals of Missouri, Kansas City

December 1, 1924

Appeal from the Circuit Court of Cooper County.--Hon. Henry J Westhues, Judge.

AFFIRMED.

Judgment affirmed.

W. G and G. T. Pendleton for appellant.

John Cosgrove and George D. Brownfield for respondent.

OPINION

ARNOLD, J.

This is an action instituted by a bill in equity filed by John R Martin and W. C. Martin against Cora Martin and Dorothy Martin for partition of a farm of 124.77 acres of land located in Cooper county, Missouri, alleged to have been owned by the parties as tenants in common. Plaintiffs are brothers, defendant Cora Martin is the widow and Dorothy the only child and heir-at-law of Sylvester D. Martin, a brother of plaintiffs.

The land in question was purchased December 1, 1906, by the three brothers, viz., John R., W. C. and Sylvester D. Martin, the deed being made to John R. and Sylvester D. Martin. The petition alleges title in these two brothers and states that plaintiffs had made lasting and valuable improvements on the land in the way of permanent buildings; that the land was not susceptible of division in kind without great prejudice; that Sylvester D. Martin died intestate leaving said widow and heir as his legal representatives; that the land was encumbered by a deed of trust for $ 3500 executed by John R. Martin and Sylvester D. Martin on November 24, 1915, defendant G. T. Pendleton being trustee and defendant Boonville National Bank beneficiary in said deed of trust; that plaintiffs had paid the interest on said encumbrance up to the time of filing this suit. The prayer is for partition of the land by sale thereof and allowance to plaintiffs for the value of improvements and for their payments on said encumbrance.

The answer of Cora Martin denied W. C. Martin's claim to a share in the land; denied plaintiffs' claim for the improvements and payments on the encumbrance, and charged plaintiff John R. Martin with rents and profits of Sylvester D. Martin's share in the land, and also charged him with having converted personal property belonging to Sylvester D. Martin to his own use, and prayed the court for the allowance of said charges in the decree. Defendant Dorothy Martin, an infant, through her guardian ad litem, John H. Windsor, filed formal answer, stating that she was not informed as to what right or title she had in the real estate sought to be partitioned; and that she demands strict proof by the plaintiffs and that her rights as such infant might be protected by a decree of the court.

The reply denied that plaintiffs, or either of them, had collected any rents from the land and paid no part thereof to Sylvester D. Martin, or anyone authorized by him to receive the same; and denied generally the other allegations of the answers.

It is disclosed by the record that after the purchase of the land John R. and Sylvester D. Martin occupied and operated the land as a farm, jointly, until in May, 1913, during which time they had accumulated considerable stock and other valuable personal property; that in May, 1913, Sylvester D. Martin, on account of ill health was compelled to go to the State of New Mexico, where he resided until his death which occurred on Nov. 28, 1921. In the meantime, Sylvester D. Martin intermarried with defendant Cora Martin (now Stemper) and to them was born defendant Dorothy.

The petition herein was filed in the circuit court of Cooper county, Missouri, on January 7, 1922, returnable to the May term, 1923, of said court. On March 22, 1923, at the January term of said court, by agreement of the parties, Charles W. Journey was appointed referee to try the issues involved and to report his findings to the court. On May 23d of the May term, 1923, the referee filed his report. In substance the report allowed all the claims made by plaintiffs for improvements, taxes paid, interest paid on the indebtedness, etc., and in behalf of defendants he charged the plaintiffs with one-third of the value of the stock left on the land when Sylvester D. Martin went away in 1913, and also charged the plaintiffs with one-third of the rental value of the land. The referee's report included all the evidence taken by him.

On May 23, 1923, plaintiffs filed exceptions to the report which the court overruled, and on September 15, 1923, to which the May term had been adjourned, leave was granted plaintiffs to file a bill of exceptions on or before November 15, 1923, and the bill was filed within the specified time. Pursuant to the report of the referee the land was ordered sold on October 25, 1923. The sheriff made his report of the sale and on October 26th the sale was approved and the money arising therefrom was ordered to be distributed in accordance with the finding of the referee, and on said date plaintiffs filed their motion for a new trial, which was overruled. Plaintiffs appeal.

Defendants contend that as there was no term bill of exceptions filed at the May (1923), term, there is nothing for this court to consider excepting what occurred at the October term, to-wit the report of the sheriff of the sale of the land and the order of distribution. If this position be upheld it would follow this appeal would end at this point. However, the record discloses that appellants' exceptions were taken at the May term, 1923, and were incorporated in the bill of exceptions filed December 31, 1923, pursuant to an order of court at an adjourned session of the May term, September 15, 1923, extending the time for filing said bill. The exceptions thus were duly preserved. [Sec. 1460, R. S. 1919; Diener v. Pub. Co., 232 Mo. 416, l. c. 425.]

In construing section 1469, Revised Statutes 1919 (then section 806, Revised Statutes 1899), the Supreme Court held "a defendant is not compelled to appeal from an interlocutory judgment in partition; and if he does not appeal until after final judgment the matters leading up to the interlocutory appeal, if properly preserved, remain interlocutory and will be reviewed on the one appeal. But if he does appeal from the interlocutory judgment and that is affirmed, that judgment becomes fixed and final, and cannot be further reviewed, either by the trial court or by the appellate court on a subsequent appeal from the final judgment." [Padgett v. Smith, 206 Mo. 303 (Syl.), 103 S.W. 943; Fogle v. Pindell, 248 Mo. 65, 154 S.W. 81.]

There is no dispute that the judgment entered in May, 1923, on the report of the referee was an interlocutory judgment. The matters complained of are found on the face of the record proper. The findings of a referee are a part of the record proper and have the effect of a special verdict. [Howard v. Baker, 119 Mo. 397, 24 S.W. 200; Roberts v. Hendrickson, 75 Mo.App. 484; Citizens' Coal Mining Co. v. McDermott, 109 Mo.App. 306, 84 S.W. 459.] We hold against defendants on this point.

The first assignment of error now presented is that the court erred in sustaining the finding of the referee charging the rents and profits of the land against the plaintiffs. In support of this contention it is argued that an equity arises in favor of one tenant in common against the co-tenant for rent only where the latter has collected rent from a stranger, or has ousted or excluded the cotenant from joint occupancy or use of the land. This position has been held to be untenable by the Supreme Court in Byrne v. Byrne, 233 S.W. 461, wherein it was held that in chancery suits in partition a co-tenant out of possession who has received no benefit from the common estate is entitled to off-set, or credit the...