Palmer v. Alexander

• Decision Date: 12 February 1901
• Citation: 162 Mo. 127,62 S.W. 691
• Parties: PALMER v. ALEXANDER.
• Court: Missouri Supreme Court

62 S.W. 691

162 Mo. 127

PALMER v. ALEXANDER.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

PARTITION — DEED — INTEREST CONVEYED — APPEAL.

1. A voluntary partition conveys no title, but only adjusts the rights of parties to possession; and where, after deed is executed in partition to a single woman, she marries, and another deed is subsequently executed to correct a defective description, naming the wife and her husband as grantees, the husband acquires no right by the entirety, but only the right to which he is entitled as husband.

2. A question not raised in the trial court is not open to review on appeal.

Appeal from circuit court, Pettis county; George F. Longan, Judge.

Action by Eli Palmer against John D. Alexander. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Montgomery & Montgomery, for appellant. H. T. Williams, for respondent.

MARSHALL, J.

Ejectment for the possession of the S. ½ of the N. ½ of the S. W. ¼ of section 27, township 46, range 20, in Pettis county. The petition is in the usual form, and the answer is a general denial. The trial resulted in a nonsuit, and after proper steps the plaintiff appealed.

Eli Palmer, the father of the plaintiff, is the common source of title. He died intestate in 1872, seised of 279 acres of land, and leaving as his heirs at law seven living children, — Elizabeth, Mary, Eliza, David, Thomas, Eli, and Albert, — who for many years held the land in common. Eli purchased the shares of Eliza, David, Thomas, and John, which, with his own share, gave him five-sevenths of the estate. Then Eli conveyed to his sisters Elizabeth and Mary his five-sevenths interest in 200 of the 279 acres descended (including the land in controversy) in consideration of the sum of $1,000 and a conveyance by them to him of their two-sevenths interest in the remaining 79 acres. This transaction took place November 28, 1881. Thereby Eli became the sole owner of the 79 acres, and Elizabeth and Mary became tenants in common of the 200 acres. At that time Elizabeth was an unmarried maiden of some 59 summers. Shortly thereafter, on December 24, 1882, she married Phillip Carroll. It was afterwards discovered that the deeds between Eli and his sisters Elizabeth and Mary were defective, in that the land was described as being in township 47, while in fact it lies in township 46. To correct this mistake, Eli and his sisters and their husbands, on February 15, 1883, employed a lawyer to draw new conveyances. The conveyances from Eli to Elizabeth and Mary described them and their husbands as grantees. On the 19th of February, 1883, Elizabeth and Mary, by mutual deeds, in which their husbands joined, partitioned the 200 acres between themselves, and the land in controversy thus fell to Elizabeth. She and her husband lived together on this land for about a year, when he abandoned her, and never lived with her again. She continued to reside on the land for some 13 years after her husband deserted her. For five or six years before her death she lived with the defendant, although it does not appear that she was divorced from Phillip Carroll or was married to the defendant. She died childless and testate in September, 1896. After her death, Eli, the plaintiff, on December 4, 1896, secured a conveyance of all the land his sister owned from her former husband, Phillip Carroll, for a consideration of $25, and thereupon he begun this action.

1. The case was tried in the circuit court by the plaintiff upon the theory that the deed of February, 1883, to Elizabeth and Phillip Carroll created an estate by the entirety, and that upon the death of Elizabeth her husband took the whole estate as...