Reinhardt v. Wendeck

• Decision Date: 31 March 1867
• Citation: 40 Mo. 577
• Parties: GEORGE REINHARDT, ALBERT REINHARDT, JOHAN OTTO REINHARDT, and CAROLINE REINHARDT, by HENRY WILKE, their Guardian, Appellants, v. MARTIN WENDECK, ROBERT A. BAKEWELL, and FERDINAND PROVENCHERE, Respondents.
• Court: Missouri Supreme Court

40 Mo. 577

GEORGE REINHARDT, ALBERT REINHARDT, JOHAN OTTO REINHARDT, and CAROLINE REINHARDT, by HENRY WILKE, their Guardian, Appellants,

v.MARTIN WENDECK, ROBERT A. BAKEWELL, and FERDINAND PROVENCHERE, Respondents.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Bakewell & Farish, for appellants.

I. The demurrer was sustained in the court below on the doctrine of Hill v. Martin, 28 Mo. 78.

II. The defendant's possession is not adverse, but is only in right of his curtesy--Blakely v. Calder, 13 How. 477.

III. Tenantcy by the curtesy is a life estate and similar to dower in

its character; and under § 1, R. C. 1865, p. 617, partition is authorized.

J, A. Beal, for respondents.

There is a misjoinder of actions and of parties. The suit seeks to divide a tract of land among the heirs of George Reinhardt, and also asks the court to ascertain the interest of Martin Wendeck in the property as tenant by curtesy, and to apply the interest of Martin Wendeck to the payment of a deed of trust in favor of Provenchere. This is jointly two separate causes of action. In the first place, it seeks to adjust the title of the heirs of George Reinhardt to the tract of land which is a cause of action between the heirs. In the second place, the petition seeks to adjust and settle the rights of Martin Wendeck as a debtor, in a deed of trust given by him and his wife on the property. There is not the least connection between the action for partition and the action for marshalling of assets and payment of the debts of Wendeck and wife. In the third place, the partition seeks to compel Provenchere to release his right to sell the land under the deed of trust, and resort to the part of the funds that the sale of Wendeck's curtesy might bring in a partition sale. This would have the effect of destroying the security and lien of Provenchere on the fee simple of the real estate and accept a less estate. This cause of action is separate from the others, and not growing out of the same transaction, cannot be joined; therefore the petition is multifarious in joining separate and distinct causes of action in nowise connected, and cannot be done, according to the repeated decisions of this court--25 Mo. 357; 26 Mo. 186.

The test is whether one judgment in favor of one plaintiff against one defendant can be rendered. In this case there would require separate judgments in favor of plaintiff against one defendant, and one judgment in favor of one defendant against another defendant--11 Mo. 267; 9 Mo. 273; 17 Mo. 228; 26 Mo. 72.

By the statement of petition, Wendeck is a tenant by curtesy of the lands sought to be sold, and of course he has a right to the possession of the property under the curtesy, and has a legal estate. The plaintiffs have no right to immediate possession; their right is in abeyance, and to come into enjoyment after the death of Wendeck. It would divest Wendeck of the legal estate and possession to sell the property and divide the money; the curtesy would be valueless. This court has decided that a tenant by curtesy has a legal estate, and that heirs cannot sue him by partition--Alexander v. Warrance, 17 Mo, 228.

In partition suits parties must show a legal title as contradistinguished from an equitable one--7 Mo. 356, 6.

WAGNER, Judge, delivered the opinion of the court.

This was a suit for partition, and asking for a sale of the premises on the ground...