Petrie v. Reynolds, No. 20626.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRagland
Citation219 S.W. 934
PartiesPETRIE et al. v. REYNOLDS.
Decision Date02 March 1920
Docket NumberNo. 20626.
219 S.W. 934
PETRIE et al.
v.
REYNOLDS.
No. 20626.
Supreme Court of Missouri, Division No. 1.
March 2, 1920.

[219 S.W. 935]

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Lillian Petrie and others against Jesse Reynolds. From a judgment granting only part of relief prayed for, plaintiffs appeal. Reversed, with directions to enter a judgment granting the full relief asked.

E. R. Lentz, of Poplar Bluff, for appellants.

Lew R. Thomason, of St. Louis, for respondent.

RAGLAND, C.


Subject to an unassigned dower therein, the plaintiff Minnie Hettiger claims an undivided one-third, and the remaining plaintiffs each an undivided one-ninth, of the following described land, situated in Butler county, viz.: The south half of the northeast quarter, and the southeast quarter of the northwest quarter of section 33, township 24, range 6 east, containing 120 acres, more or less, according to government survey. They instituted this suit to recover possession and for partition.

The first count of the petition is in the usual form of such pleading in actions in excrement. In the second count it is alleged that one Benjamin F. Turner died intestate, November 30, 1904, seized of the 120 acres of land above described; that he left surviving him his widow, Lucy A. Turner, and his children, the plaintiff Minnie Hettiger, Sadie Gardner, and Margaret Warren, and the children of a deceased daughter, Annie Petrie, the plaintiffs Lillian, Clarence, and Gladys Petrie; that these children and grandchildren are all of his heirs; that said Margaret Warren received such advancements from her father during his lifetime that she is not entitled to share further in his estate; that after the death of said Benjamin F. Turner, said Lucy A. Turner conveyed her interest in said land to said Sadie Gardner, who thereafter by mesne conveyances conveyed to the defendant, Reynolds; that defendant is the owner of the dower interest of said Lucy A. Turner, and, subject to such dower, he and the plaintiff Hettiger each own an undivided one-third of said land, and the remaining plaintiffs each an undivided one-ninth; and that the land cannot be partitioned in kind without great prejudice to the owners. The prayer is for partition by sale.

The answer to the first count consists of a general denial and an affirmative defense. The averments of the latter are substantially as follows: Prior to the institution of this suit one Benjamin F. Turner was the owner of 360 acres of land, the 120 acres in controversy, the 120 acres immediately south of it, to wit, the north half of the southeast quarter and the northeast quarter of the southwest quarter of said section 33, and the 120 acres immediately south of the last-described tract, to wit, the south half of the southeast quarter and the southeast quarter of the southwest quarter of said section 33. Turner died intestate, leaving a widow and children, having theretofore advanced his daughter Margaret Warren her share in his estate—all as averred in the petition. Prior to his death, and at his direction, Sadie Gardner, Annie Petrie, and Minnie Hettiger, as his ostensible heirs, made parol partition among themselves of the 360 acres of land above referred to, in which they allotted to Sadie Gardner the 120 acres in controversy, to Annie Petrie the 120 acres next south of it, and to Minnie Hettiger the southernmost 120 acres. All of said land was and is of like kind and value, and the partition as made was fair, equitable, and just. After the death of Turner, for the purpose of ratifying said parol partition, his widow made a deed to Sadie Gardner, purporting to convey to the latter the allotment made to her by the partition; one to Minnie Hettiger, purporting to convey to her the allotment that had been made to her; and also one to Lillian, Clarence, and Gladys Petrie, as the heirs of Annie Petrie, then deceased. Each of the plaintiffs accepted the land so set off and conveyed to him, went into the possession thereof, and subsequently sold his share and appropriated the proceeds thereof to his own use, whereby each is estopped from asserting any claim to the land allotted to Sadie Gardner, of which defendant, by mesne and successive conveyances for a valuable consideration, has become and is the owner. The 10-year statute of limitations is also pleaded as a defense to the first count. The answer to the second count of the petition sets forth the alleged parol partition in practically the same verbiage as in the answer to the first count, and prays that the same be confirmed, that the legal title to the land in controversy be vested in defendant, and that he be granted general relief.

The reply is a general denial.

The court, after hearing the evidence, adjudged that the plaintiffs Lillian, Clarence, and Gladys Petrie owned an undivided one-third interest in and to the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of said section 33, subject to the dower interest of Lucy A. Turner, which was owned by defendant; that defendant had no other interest in the land last described; and that plaintiff Hettiger had no interest in any of the land in controversy. It also adjudged that defendant was the sole owner of the southeast quarter of the northeast quarter of said section 33. The judgment then proceeds to quiet the respective titles as decreed. Plaintiffs Petrie were awarded nominal damages, but

219 S.W. 936

were given no relief in respect to the recovery of possession. The decree is silent as to the ownership of the remaining undivided two-thirds interest in the 80 acres in which the retries are found to have a one-third interest, and the prayer for partition is wholly ignored. From this judgment plaintiffs appeal.

It will, perhaps, give a clearer understanding of the legal questions involved to state, first, the facts relative to the title to the land in controversy; next, those evidencing the title to the remainder of the land claimed to have been the subject of the parol partition; and, lastly, those effecting such partition, if they did so operate. The facts with reference to the titles to all of said lands, at the time of the alleged partition and prior thereto, are either admitted or in effect conceded; only the let al effect of some of them are in dispute. Benjamin F. Turner is the common source of title. In 1886 Turner and his wife, Lucy A., conveyed to Elizabeth Baxter by warranty deed the southeast quarter of the northeast quarter of said section 33. (This is the 40 acres, the title to the whole of which the trial court adjudged to be in defendant.) At the same time Elizabeth Baxter executed a mortgage with power of sale in the usual form reconveying the land to Turner. In 1895 Turner, as mortgagee, acting under the power conferred by the mortgage, sold and conveyed the land to his wife. In 1898 Turner and wife executed their joint warranty deed, purporting to convey to one Helms the Baxter 40 and the remaining 80 acres in controversy, for a recited consideration of $2,200. As a part of the same transaction Helms gave Turner a mortgage back to secure to the latter the payment of a note for the sum of $2,200. In January, 1900, Helms executed a general warranty deed, reciting a consideration of $500, and purporting to convey the entire 120 acres to Turner, the mortgagee. The latter died intestate, November 30, 1904, leaving surviving him his widow, Lucy A. Turner, and his children, the plaintiff Minnie Hettiger, Sadie Gardner, and Margaret Warren, and the three Petrie children, plaintiffs herein, I he children of a deceased daughter, Annie Petrie. These children and grandchildren constituted all of his heirs. Margaret Warren, in a subsequent judicial proceeding among Turner's heirs, was adjudged to have been advanced her share of her father's estate during his lifetime, and she may be dropped from further consideration. On February 25, 1905, Lucy A. Turner executed a deed to Sadie Gardner and Samuel Gardner (her husband). It recited a consideration of $1 and love and affection and purported to convey the land in controversy. About a month later Lucy A. Turner, as administratrix of Benjamin F. Turner, went through the form of foreclosing the Helms mortgage by sale pursuant to the power given by the mortgage deed. As a result of this proceeding she executed a mortgagee's deed to Sadie Gardner, purporting to convey to the latter the land in controversy. The defendant has acquired by mesne conveyances whatever title the Gardners had. The foregoing is a summary of the...

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11 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553: Petrie v. Reynolds, 219 S.W. 934; Elliott v. Dulaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App......
  • Steinberg v. Merchants Bank of Kansas City, No. 30076.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1933
    ...the following cases: Stottle v. Ry. Co., 321 Mo. 1190, 18 S.W. (2d) 433; Richards v. Johnson (Mo.), 261 S.W. 53; Petrie v. Reynolds (Mo.), 219 S.W. 934; Boyajian Bros. v. Reinheimer (Mo. App.), 229 S.W. 441; St. Louis v. United Rys., 263 Mo. 387, 174 S.W. 78; and Weil v. Posten, 77 Mo. More......
  • Borchers v. Borchers, No. 38353.
    • United States
    • United States State Supreme Court of Missouri
    • February 7, 1944
    ...44; St. Louis v. Contracting Co., 210 Mo. 491; Mayfield v. Railway, 101 S.W. (2d) 769; Berberet v. Myers, 240 Mo. 58; Petrie v. Reynolds, 219 S.W. 934. (2) Plaintiff Hattie E. Borchers, the widow, having renounced the will and having elected to take a child's part, was entitled to have part......
  • Request a trial to view additional results
11 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553: Petrie v. Reynolds, 219 S.W. 934; Elliott v. Dulaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App......
  • Steinberg v. Merchants Bank of Kansas City, No. 30076.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1933
    ...the following cases: Stottle v. Ry. Co., 321 Mo. 1190, 18 S.W. (2d) 433; Richards v. Johnson (Mo.), 261 S.W. 53; Petrie v. Reynolds (Mo.), 219 S.W. 934; Boyajian Bros. v. Reinheimer (Mo. App.), 229 S.W. 441; St. Louis v. United Rys., 263 Mo. 387, 174 S.W. 78; and Weil v. Posten, 77 Mo. More......
  • Borchers v. Borchers, No. 38353.
    • United States
    • United States State Supreme Court of Missouri
    • February 7, 1944
    ...44; St. Louis v. Contracting Co., 210 Mo. 491; Mayfield v. Railway, 101 S.W. (2d) 769; Berberet v. Myers, 240 Mo. 58; Petrie v. Reynolds, 219 S.W. 934. (2) Plaintiff Hattie E. Borchers, the widow, having renounced the will and having elected to take a child's part, was entitled to have part......
  • Request a trial to view additional results

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