Mastin v. Ireland

• Decision Date: 03 July 1928
• Docket Number: No. 27083.,27083.
• Citation: 8 S.W.2d 900
• Parties: ASENATH MASTIN, Appellant, v. MARY IRELAND and EMORY IRELAND her Husband, MARTHA MASTIN and ELLIC E. MASTIN her Husband, THOMAS RAYMOND WEATHERED and ANNIE WEATHERED his Wife and ELIZABETH WEATHERED.
• Court: Missouri Supreme Court

8 S.W.2d 900

ASENATH MASTIN, Appellant, v. MARY IRELAND and EMORY IRELAND her Husband, MARTHA MASTIN and ELLIC E. MASTIN her Husband, THOMAS RAYMOND WEATHERED and ANNIE WEATHERED his Wife and ELIZABETH WEATHERED.

No. 27083.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Gentry Circuit Court. — Hon. John M. Dawson, Judge.

AFFIRMED.

J.W. McKnight for appellant.

(1) The right of partition is an absolute right which yields to no consideration of hardship or inconvenience. Anything that militates against this right is repugnant to the essential characteristics of cotenancy. The tendency of our times is to greater freedom of sale and transfer of property unfettered by conditions or limitation of the right of alienation. Haeussler v. Mo. Iron Co., 110 Mo. 194; Flournoy v. Kirkman, 270 Mo. 1. (2) Under the provisions of Sec. 1995, R.S. 1919, a vested estate in remainder may be partitioned, leaving the unexpired life estate intact. Atkinson v. Brady, 114 Mo. 200; Crowley v. Sutton, 209 S.W. 902; Doerner v. Doerner, 161 Mo. 407; Carson v. Hecke, 282 Mo. 580. The owner of a vested remainder in a fractional part of land is entitled to a partition although not in possession during the life estate. Crowley v. Sutton, 209 S.W. 902. (3) Partition is a proper proceeding in which to assign homestead and dower. Dalton v. Simpson. 270 Mo. 287; Weatherford v. King, 119 Mo. 51; Colvin v. Hauenstein, 110 Mo. 575; Simpson v. Scroggins, 182 Mo. 560; Hammons v. Hammons, 253 S.W. 1055; Martin v. Martin, 313 Mo. 476; Sec. 5862, R.S. 1919. It is made the duty of the court, upon finding outstanding homestead to set out such homestead. Sec. 5862, R.S. 1919; Hammons v. Hammons, 253 S.W. 1056; Martin v. Martin, 313 Mo. 476. Where the right to a homestead appears it is the duty of the court to order the homestead set out and the partition of the remainder of the lands not included in the homestead. Quail v. Lomas, 200 Mo. 674; Dalton v. Simpson, 270 Mo. 287; Simpson v. Scroggins, 182 Mo. 560. Where the widow in addition to her homestead rights has by proper conveyance acquired life estate in all the lands out of which the homestead must be carved, her interest in said lands is not so uncertain that the sale of the fee subject to her rights of life estate in all lands would be bad public policy. Armour v. Lewis, 252 Mo. 568; Atkinson v. Brady, 114 Mo. 200; Crowley v. Sutton, 209 S.W. 902. By reasons of the peculiar characteristics of the homestead estate under the law the fee and the homestead are inseparable and probably cannot be merged in a life estate in the same lands. Sec. 5859, R.S. 1919; Armour v. Lewis, 252 Mo. 568; McFadin v. Board, 188 Mo. 688; Quail v. Lomas, 200 Mo. 674; Martin v. Martin, 313 Mo. 476. (4) By Sec. 1514, R.S. 1919, it is made the duty of the court on appeal to review a matter shown by the record proper whether any exceptious were taken and saved or not. Bateson v. Clark, 37 Mo. 34; Coleman v. Roberts, 214 Mo. 634; Vaught v. Home Ins. Co., 277 S.W. 941; State v. Libby, 203 Mo. 598.

Sullinger & Ward for respondents.

(1) To maintain partition, the parties seeking such partition must have either actual or constructive possession. It is not a suit to try the title, or to settle the right to a disputed possession. If parties joined as defendants are in actual possession, adversely to plaintiff, partition to determine the title cannot be maintained. 21 Am. & Eng. Ency. Law (2 Ed.) 1147, 1148; Chamberlain v. Waples, 193 Mo. 96; Gibson v. Owens, 286 Mo. 48; Davies v. Keiser, 297 Mo. 17. One tenant in common cannot maintain partition against his cotenant, where he has been disseized. Wommack v. Whitemore, 58 Mo. 448; Coberley v. Coberley, 189 Mo. 1; Dixon v. Finnegan, 182 Mo. 115; Estes v. Nell, 140 Mo. 650; Hutson v. Hutson, 139 Mo. 235; Colvin v. Hauenstein, 110 Mo. 582; Hauessler v. Iron Co., 110 Mo. 192. (2) Homestead, as such, is not the subject of partition. Rhorer v. Brockridge, 86 Mo. 544; Quail v. Lomas, 200 Mo. 687; Dalton v. Simpson, 270 Mo. 300. (3) Tenancy in common is founded upon the unity of possession only. No other unity is required, but without the unity of possession existing at the time suit in partition is instituted, it cannot be maintained. Carver v. Fennimore, 116 Ind. 236.

GENTRY, J.

By her petition filed in the Circuit Court of Gentry County, the plaintiff asked for the partition of certain lands in that county. In appropriate language, she stated that one Thomas S. Weathered died intestate in that county in June, 1909, seized and possessed of said lands, leaving him surviving as his sole heirs at law his widow, the defendant Elizabeth Weathered, and his five children, Edward E. Weathered, Mary Ireland, Martha Mastin, Dora M. Lock, and Thomas R. Weathered, all of whom are made defendants except Dora M. Lock and Edward E. Weathered. She further alleged that the said Dora M. Lock and husband conveyed all of her interest in said land to the plaintiff, and that Edward E. Weathered conveyed his interest in said lands to defendant Thomas R. Weathered. After an allegation that the real estate could not be partitioned in kind, and that the defendant Elizabeth Weathered was entitled to her dower right therein, prayer was made for the admeasurement of dower and the sale of said real estate and the division of the proceeds thereof. It should also be mentioned that the petition alleged that there had been an administration on the estate of the deceased and that all of his debts had been paid.

The defendants Mary Ireland, Martha Mastin and Thomas R. Weathered, in their separate answer, admitted the death of the ancestor, the relationship of the parties and the conveyance by Dora M. Lock to plaintiff, but denied that the interest of the parties had been correctly stated. They further set up the fact that all of the children of the deceased, in December, 1915, executed a written lease, conveying all of their right of possession and benefits arising from said lands to the defendant Elizabeth Weathered during her lifetime and that said defendant had been in the undisputed possession of said land ever since.

The defendant Elizabeth Weathered, in her separate answer, admitted the death of her husband, his intestacy, the names of his children, the administration of his estate and the payment of all outstanding debts. She then denied that the defendants Mary Ireland, Martha Mastin and Thomas R. Weathered were the owners as tenants in common or otherwise with her denied that they held the same subject only to her right of dower and denied that she was only entitled to a life estate. She then alleged that her husband occupied said described real estate at the time of his death as his homestead and that she had continued to occupy the same as her homestead thereafter. She also alleged that she was entitled to her dower interest in said lands. She then alleged that in December 1915, for a valuable consideration, her co-defendants and Dora M. Lock entered into a written contract, by which they sold and leased to her, for and during her natural life, the said described real estate; that she thereby became entitled to the same during her lifetime, and that she had ever since the execution of said lease been in the undisputed and adverse possession thereof and was still holding the same antagonistic to any claim of the plaintiff, by reason whereof partition thereof did not lie. She further alleged that the plaintiff had knowledge of the execution of said contract and lease at the time the plaintiff obtained said deed from Dora M. Lock; and that the plaintiff obtained said deed with full knowledge thereof and with the distinct understanding and agreement that the defendants' right of possession of all of said lands was not and would not be disturbed or interrupted, and that said deed would not have been executed and delivered except for said understanding that the defendant was to be permitted to occupy said lands during her lifetime. An estoppel was then plead and also adverse, open and notorious possession of said lands for more than ten years.

A reply put in issue the new matter contained in the two answers. A trial before the court resulted in a judgment for the defendants, denying partition. From this judgment an appeal has been taken by plaintiff, but no bill of exceptions has been filed.

I. As appellant has not seen fit to preserve the proceedings of the trial court by bill of exceptions, we are restricted in our examination to the record proper, which as above stated, consists of the petition, two answers, the reply and No Exceptions. judgment [McLarty v. Griggs, 222 S.W. 391.] As the appellant has not preserved for review the lease or contract referred to in the pleadings, we must assume that the trial court properly held that the same was a bar to the partition of said described real estate. Every presumption must be indulged in favor of the correctness of the decision of the trial court; this has been the law of this State ever since the decision of Boone County v. Corlew, 3 Mo. 12.

II. The duty devolves on the appellant, as this court has often said, of preserving the evidence offered at the trial and of...