Phelps v. Domville

• Decision Date: 10 June 1957
• Docket Number: No. 44560,44560
• Citation: 303 S.W.2d 601
• Parties: Nicholas Thomas PHELPS and Juanita Phelps Zans, Respondents, v. Milton H. DOMVILLE and Rita C. Domville, J. E. Bridges, Trustee, L. B. White, Homer C. Strohm and Rose M. Strohm, F. H. Smith, Dora Williamson Murdock, Agnes Murdock, and Elroy Murdock, Glenn D. Smith and Vivian Smith, Lyman L. Murdock, Sr., Stanley E. Gregg, Trustee, A. Ralph Young, Jr., Trustee, James C. Noel, doing business as Noel Insurance Agency, Arthur L. Pugh and Alice E. Pugh, Charles E. Schultz and Ruby J. Schultz, G. Dennis Sullivan, J. W. Elliott and Cora Elliott, T. N. Taylor and Mabel M. Taylor, Elmer W. Ahmann, Jr., George H. Ackerly and Ella A. Ackerly, W. B. Davis and Beulah D. Davis, William Kemp, Patrick H. McGraw and Della McGraw, Carl L. Worden and Darlene Worden, Woodrow Owings, Henrietta Owings, and Frank Cooper, Ed. E. Warren and Mary Warren, Anthony M. Tilley and Mildred Garnett Tilley, Lester J. Burton and Myrtle E. Burton, Fred H. Smith and Sarah G. Smith, Elmer Bradley, William D. Moore and Artie B. Moore, and Jessie L. Donaldson, Eddie Pfiefer and John Baker, Louis Martin Kemp and Betty M. Kemp, Appellants.
• Court: Missouri Supreme Court

Page 601

303 S.W.2d 601

Nicholas Thomas PHELPS and Juanita Phelps Zans, Respondents, v. Milton H. DOMVILLE and Rita C. Domville, J. E. Bridges Trustee, L. B. White, Homer C. Strohm and Rose M. Strohm, F H. Smith, Dora Williamson Murdock, Agnes Murdock, and Elroy Murdock, Glenn D. Smith and Vivian Smith, Lyman L. Murdock Sr., Stanley E. Gregg, Trustee, A. Ralph Young, Jr. Trustee, James C. Noel, doing business as Noel Insurance Agency, Arthur L. Pugh and Alice E. Pugh, Charles E. Schultz and Ruby J. Schultz, G. Dennis Sullivan, J. W. Elliott and Cora Elliott, T. N. Taylor and Mabel M. Taylor, Elmer W. Ahmann, Jr., George H. Ackerly and Ella A. Ackerly, W. B. Davis and Beulah D. Davis, William Kemp, Patrick H. McGraw and Della McGraw, Carl L. Worden and Darlene Worden, Woodrow Owings, Henrietta Owings, and Frank Cooper, Ed. E. Warren and Mary Warren, Anthony M. Tilley and Mildred Garnett Tilley, Lester J. Burton and Myrtle E. Burton, Fred H. Smith and Sarah G. Smith, Elmer Bradley, William D. Moore and Artie B. Moore, and Jessie L. Donaldson, Eddie Pfiefer and John Baker, Louis Martin Kemp and Betty M. Kemp, Appellants.

No. 44560.

Supreme Court of Missouri, En Banc.

June 10, 1957.

Rehearing Denied July 8, 1957.

Rufus Burrus, James L. Gillham and Reginald A. Smith, Independence, Russell W. Maloney, David W. Barry and Meyer, Smith, Wetzel & Barry, Kansas City, and Charles A. Lee, Jr., St. Louis, for appellants.

Terrance W. Imes and Walter A. Raymond, Kansas City, for respondents.

STOCKARD, Commissioner.

Nicholas Thomas Phelps and Juanita Phelps Zans, brother and sister, filed this action June 4, 1951. The petition was in three counts. Count I was to determine and quiet title to certain described real estate, consisting of approximately 135 1/2 acres, in which plaintiffs claim an undivided three-fourths interest by inheritance. By agreement of the parties and on order of the court a separate trial was held on count I, and on this appeal we are not concerned with the issues in the other two counts. The defendants claim the whole of different portions of the described real estate under a sale in partition proceedings and mesne conveyances. The trial court found the issues for plaintiffs, and adjudged and decreed that they are the owners of an undivided three-fourths interest in the described real estate (with the exception that plaintiff Juanita Phelps Zans was decreed to have no interest in a tract consisting of 93/100ths of an acre,) and that the named defendants are the owners of the remaining undivided interests in specifically described portions of said real estate. Defendants have appealed.

Plaintiffs are the grandchildren of Lillie A. Phelps who died in 1898, intestate, seized with the fee simple title to the land involved. She was survived by Nicholas Hocker Phelps, her husband, and their two children, Nicholas Gregg Phelps and William Joseph Phelps. At the death of his wife, Nicholas Hocker Phelps received a life estate by curtesy consummate and the two children received the undivided remainder in fee. Nicholas Gregg Phelps died in 1901 leaving as heirs his father and brother. Thereupon the father, Nicholas Hocker Phelps, acquired one-half of his deceased son's interest which being merged with his life estate therein became an undivided one-fourth interest in fee. William Joseph Phelps, the surviving brother, then acquired an additional one-fourth remainder in fee, or a total of three-fourths.

William Joseph Phelps married Ruby Stevenson, and of this marriage there were born the two plaintiffs, Juanita on December 27, 1924, and Nicholas Thomas on April 2, 1927. William Joseph Phelps died on May 9, 1938, intestate, and no administration was commenced on his estate. Surviving him were the plaintiffs, who received their father's interest by inheritance, and also his widow, Ruby, who received a dower interest, being a one-third interest for life in the undivided three-fourths interest of plaintiffs, all being subject to the outstanding curtesy of Nicholas Hocker Phelps.

On September 9, 1939, Ruby Phelps filed suit against Nicholas Hocker Phelps, Juanita Phelps and Nicholas Thomas Phelps to partition the real estate. This case was designated as No. 92,501. On September 13, 1939, Nicholas Hocker Phelps filed suit in the same court against Ruby Phelps, Juanita Phelps and Nicholas Thomas Phelps to partition the real estate. This case was designated as No. 92,510. Juanita and Nicholas Thomas were minors. Personal service was had on all the defendants in each case.

The only pleading filed to the petition of Ruby Phelps in case No. 92,501 was a demurrer on behalf of Nicholas Hocker Phelps on the ground that the petition failed to state a cause of action. The only pleading filed to the petition of Nicholas Hocker Phelps in case No. 95,510 was a demurrer on behalf of Ruby Phelps on the ground that another action was pending between the same parties for the same cause.

On June 3, 1940, James F. King filed a petition in case No. 92,501 for appointment, and, pursuant to what is now Section 528.010 (all statutory references are to RSMo 1949, V.A.M.S.), was by the court appointed guardian ad litem for Juanita and Nicholas Thomas Phelps, the minor defendants. No pleading was filed on behalf of said minors.

On June 3, 1940, an interlocutory decree in partition was entered in case No. 92,501, in which the interests of the parties were stated as last above set out, and, after reciting its finding that partition could not be had in kind, the court appointed Emil J. Milani as special commissioner to sell the real estate. The special commissioner sold the land for $4,000 to Leo E. Swenson and Mary Swenson. On July 30, 1940, the court entered its order confirming said sale and providing for the distribution of the proceeds, after the payment of costs, as follows: Nicholas Hocker Phelps, $1,699.36; Ruby Phelps, $550.20; Juanita Phelps, $508.22; and Nicholas Thomas Phelps, $508.22. However, the court decree directed that 'the amounts due said Juanita Phelps and Nicholas Thomas Phelps shall be paid to Ruby Phelps their Guardian as soon as she has been appointed and qualified.' Upon application, the Probate Court of Jackson County appointed Ruby Phelps curator of the estates of Juanita and Nicholas Thomas. The application was joined in by Juanita, who was then over 14 years of age. Ruby Phelps received from the special commissioner the $1,016.44 due her wards, and the probate records show that the curator was discharged after all the money had been paid for authorized expenses of plaintiffs. There is no contention that there was any fraud on the part of anyone in connection with the partition proceedings, that the amount received by plaintiffs was inadequate or inequitable, or that Ruby Phelps as curator did not spend plaintiffs' share of the money for the benefit of plaintiffs.

On July 30, 1940 the special commissioner deeded the real estate to Leo E. Swenson and Mary Swenson, the successful bidders at the partition sale, and on the same day they deeded the property to Nicholas Hocker Phelps and Emma C. Phelps for a recited consideration of $1.00 and other good and valuable consideration. It is by subsequent conveyances that the several defendants acquired their respective interests in the land.

The partition proceedings were held pursuant to what is now Section 528.030, but under this section the holder of a dower interest or other life estate may not compel a partition of his interest from that of the remaindermen or reversioners. Bragg v. Ross, Mo.Sup., 139 S.W.2d 491; Duncan v. Duncan, 324 Mo. 167, 23 S.W.2d 91; Byars v. Howe, 311 Mo. 14, 26, 276 S.W. 43, 46; White v. Summerville, 283 Mo. 268, 223 S.W. 101. At the time the order of partition was entered in case No. 92,501, the only interest of Ruby Phelps in the land was that of a dower interest subject to the outstanding life estate of Nicholas Hocker Phelps. She had only an interest contingent upon her surviving the life tenant. She held no existing undivided tenancy susceptible of being parceled between herself and any cotenant so as to become a several holding of each. Noyes v. Stewart, 361 Mo. 475, 235 S.W.2d 333, 336. Although the owner of dower usually had the right to have the dower set off in kind (see Section 469.250 et seq., V.A.M.S. c. 475 Appendix, now repealed, Laws of Missouri 1955, page 385), or when not susceptible of division in kind the owner was entitled to the yearly value thereof for life (Section 469.320, V.A.M.S. c. 475 Appendix, also now repealed, supra), we do not find that there was authority for a judicial sale, under the compulsion of the owner of dower, of all the land subject thereto so that the value of the dower interest could be paid in money. See White v. Summerville, 283 Mo. 268, 223 S.W. 101, 103. Therefore, partition of the real estate in case No. 92,501 at the compulsion of Ruby Phelps was unauthorized. It is by reason of this that plaintiffs contend that the judgment in the partition proceedings and the sale by the special commissioner are void sale by the special commissioner are void in this proceeding.

Defendants contend that the judgment for partition is not void because Nicholas Hocker Phelps was entitled to partition the land, and the two cases [No. 92,501 and No. 92,501] were consolidated. Defendants contend that by this procedural consolidation the partition was had upon the request of one who was entitled to force partition of the land.

Four days after case No. 92,501 was filed by Ruby Phelps, case No. 92,510 was filed by Nicholas Hocker Phelps. He was the owner of a one-fourth interest in the fee and he had the right to compel partition of the fee subject to his life estate. Atkinson v. Brady, 114 Mo. 200, 21 S.W. 480, 35 Am.St.Rep. 744; Carson v. Hecke, 282 Mo. 580, 222 S.W. 850; Virgin v. Kennedy, 326 Mo. 400, 32 S.W.2d 91. Ruby Phelps, properly, was named therein as a party because every person having...