Rolf v. Timmermeister

• Decision Date: 04 March 1884
• Citation: 15 Mo.App. 249
• Parties: MARIA E. ROLF ET AL., Appellants, v. FRED TIMMERMEISTER, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 249

MARIA E. ROLF ET AL., Appellants,

v.FRED TIMMERMEISTER, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 4, 1884.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

BROADHEAD & HAEUSSLER, and C. V. SCOTT, for the appellants: The homestead estate is an entirety. The statute relating to partition proceedings (ch. 56, Rev. Stats. 79), does not confer jurisdiction upon the circuit court to partition premises which have wholly vested as a homestead estate.-- Keyes v. Hill, 30 Vt. 768; Coles v. Coles, 15 Johns. 320.--The statute as amended (1875) by its terms expressly exempts the homestead estate from the operation of the laws respecting partition, and thereby suspends the general jurisdiction of the circuit court for that purpose, during the continuance of said estate.-- Sect. 2693, Rev. Stats. 1879, Mo.; Rhorer v. Brockhage, 13 Mo. App. 397. Minor children should be protected in their homestead rights, notwithstanding the failure of their guardian ad litem to claim it in a suit against them.-- Shower v. Robinson, 43 Mich. 513; Allen v. Shields, 72 N. C. 514. Minors whose property has been sold without legal authority, can recover it without tendering the price of sale to the purchaser.-- Self v. Taylor, 33 La. Ann. 769; Miller v. Smith, 26 Minn. 248; Walsh v. Young, 110 Mass. 399.

HENRY HITCHCOCK, for the respondent: The widow and children are estopped from now claiming homestead in the property.-- Grogg v. Grogg, 65 Mo. 347, 348; Wright v. Dunning, 46 Ill. 272. The deed was a bar to a claim of homestead.-- Cashion v. Faina, 47 Mo. 134; Casebolt v. Donaldson, 67 Mo. 308.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment brought by a widow and the curator of her two minor children, to recover the widow's and children's homestead. The defence is that the defendant Timmermeister, who holds the adversary title, purchased the premises, together with other premises, at a sale for partition, in a proceeding in which the plaintiff, Mrs. Rolf, and her two minor children, joined with her in this action, by their curator, were parties, the children being represented by their duly appointed guardian ad litem. An agreed statement of facts confesses this defence, and shows that the proceeding in question was a partition of the real estate of Casper Henry Rolf, between his widow and children; that Mrs. Rolf was one of the plaintiffs in that suit; that her minor children were made defendants, were duly served with process, and were represented by a guardian ad litem, appointed by the court, who filed an answer for them, submitting their rights to the court; that neither the widow nor the minor children set up a right of homestead as to any portion of the premises, although they were living at the time upon the second floor of one of the tenements embraced in the premises, which had, prior to the death of Casper Henry Rolf, and since that time to the time of the sale for partition, been occupied as a family homestead; that at the sale for partition, the defendant, Timmermeister, became the purchaser, received the commissioner's deed, paid the purchase price in money and in notes, which money and notes were divided between the parties to the partition proceeding, according to their respective shares, the widow receiving the sum of $1,420.55 as and for the value of her dower interest, fixed in accordance with the report of a commissioner appointed by the court for this purpose, and that the plaintiff Stock also received as curator for the two minor children, in money and notes, the sum of $2,278.58, one-half being for each of them; and that Timmermeister knew at the time he purchased the estate at the partition sale, that Mrs. Rolf and the children were occupying the premises, that is, the second floor of the tenement for the recovery of which, and the lot upon which it stands, this action of ejectment is now brought.

Upon these facts, which we do not think it necessary to set out more fully, the circuit court, sitting as a jury, rendered judgment for the defendants. We are clear that this judgment was right. It appears from the foregoing statement, that the entire estate of Casper Henry Rolf, including the widow's dower, and the widow's and children's homestead, was sold for partition, and that the widow and children have received the proceeds of the sale,--unless we are to take it that, because the widow, who was one of the moving parties in the partition suit, and the minor children, who were represented by a duly appointed guardian ad litem, did not elect to set up the right of homestead of the widow and minor children in the premises, they are to be deemed as having been sold subject to this estate of homestead. For what reason should we so hold? It is argued that we should so hold for the reason that the statute relating to partition confers no jurisdiction on the circuit court to decree a partition, or a sale for partition, of the widow's and children's homestead. This can not be the law, when considered merely as a question of jurisdiction. If it were the law, there could not in any case be a partition, even by consent, of premises including a minor's homestead, because the consent of a minor to a partition in pais would not be binding upon him, nor would it in a proceeding for partition in court, since consent can not confer jurisdiction. If this position is true, it must follow, that under no circumstances can there be partition of an estate which includes a minor's homestead; and the adult children would be kept out of their share of their deceased father's estate until the youngest child should come of age. Our decision in Rhorer v. Brockhage (13 Mo. App. 397), does not go to the length for which the plaintiff's counsel now contends. That was an appeal from a decree awarding partition of a homestead of a minor child between himself and the grantee of his mother, in which the partition was resisted by his guardian ad litem. That was, accordingly, a direct proceeding to set aside such a decree for error. Nothing in that decision goes to the length of holding that the circuit court is without jurisdiction to decree a partition of premises which embrace the homestead of a minor, in the sense that its judgment ordering a sale of such homestead for partition could be treated as void in a collateral proceeding. The circuit court has entire jurisdiction of the...