Simmons v. MacAdaras

• Decision Date: 10 December 1878
• Parties: SAMUEL SIMMONS, Respondent, v. MARCELLA MacADARAS ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 297

SAMUEL SIMMONS, Respondent,

v.MARCELLA MacADARAS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 10, 1878.

1. Where A. becomes owner of one-half of the reversion and one-third of the leasehold, the remainder of the reversion being owned by another, who also owns one-sixth of the leasehold, the remainder of the leasehold being owned by third parties, there can be no partition at the suit of A.

2. The acquisition by A. of the reversion while he owned one-third of the leasehold, did not create a merger of the entire leasehold estate in the fee, there being an intervening estate in the other lessees.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.JOHN N. STRAAT, for appellants: Merger.-- Shehan v. Hampton, 2 Keyes, 304; Daugherty v. Jack, 5 Watts, 456; Cook v. Brightly, 46 Pa. St. 439; Phillips v. Clarkson, 2 Binn. 138; Pennington v. Coats, 6 Wheat. 277; Chamley v. Hausberry, 13 Pa. St. 16; Holtz's Appeal, 40 Pa. St. 200; Duncan v. Drury, 9 Barr, 332.

JAMES TAUSSIG, for appellant Green: When the owner of a fee-simple estate grants a lease of the premises of which he has the fee, he, as reversioner, is not entitled to involuntary partition against his lessees. He is not in possession; his lessees are; they hold adversely to the reversioner; there is neither the unity of interest nor the unity of possession which the law requires.-- Alexander v. Warrance, 17 Mo. 228; Lambert v. Blumenthal, 26 Mo. 471; Forder v. Davis, 38 Mo. 107; Shaw v. Gregoire, 41 Mo. 407; Gott v. Powell, 41 Mo. 449; Wommack v. Witmore, 58 Mo. 448; Brown v. Brown, 8 N. H. 93; Phelan v. Keelley, 25 Wend. 389; Miller v. Miller, 9 Abb. Pr. (N. S.) 444. Merger.-- Johnson v. Johnson, 7 Allen, 196; Boston v. Condit, 19 N. J. Eq. 394; Blodgett v. Hildreth, 8 Allen, 186; McConnell v. Kibbe, 43 Ill. 12; Cook v. Webb, 19 Minn. 167; Clark v. Clark, 56 N. H. 105; Buffon v. Dean, 4 Gray, 385; Pratt v. Bank of Bennington, 10 Vt. 293; Sherman v. Abbott, 14 Pick. 448.

SAMUEL REBER, for respondent: Merger.--4 Kent's Comm. 99, 100; 3 Prest. on Conv. 24, 89, 90, 320, 321; 5 Williams, 382, top pp. 370, 373; Badely v. Vigurs, 26 Eng. Law & Eq. 144; 3 Johns. Ch. 53; Atkinson v. Angert, 46 Mo. 516; Miller v. Talley, 48 Mo. 503. Partition.-- Reinhardt v. Wendeck, 40 Mo. 577.

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

This is a suit for partition of a lot and a building thereon. Shepard, being the owner in fee of a vacant lot on Fourth Street, in St. Louis, on February 15, 1864, leased it to the respondent, Simmons, for the term of fifty years, at a rent which varied during the first years, but was $3,000 after the expiration of ten years from the beginning of the term, the first day of April, 1864. By the lease it was provided that at the expiration of the first fifty years and every fifty years thereafter the lease should be renewed from time to time forever, upon the same terms; that the lessee should erect upon the lot a building four stories in height, worth at least $25,000. There were various transfers, and finally the respondent held one-third, Bernard Crickard one-sixth, John Doyle one-sixth, and Barclay, trustee for Mrs. Barrett, one-third of the leasehold estate. In the year 1865, Shepard conveyed his reversionary interest in the real estate, and it appeared that in 1870 the respondent held one-third of the leasehold estate and one-half of the reversion, Crickard one-sixth of the leasehold and one-half of the reversion, Barclay, as trustee for Mrs. Barrett, one-third of the leasehold estate, and the estate of John Doyle one-sixth of the leasehold estate. Doyle died in 1867, and Green, his administrator, is one of the appellants. Crickard died in 1872, and devised all his estate to the appellant MacAdaras. Other parties were also made defendants, but it is not necessary to describe them or their interests. The present suit was brought in December, 1876, and by it the respondent seeks partition as against appellants representing the interests which have been described.

It appeared that the respondent erected a building upon the land according to the terms of the lease, and that, to enable him to do so, he obtained in 1864 a loan of $37,000 from Crickard and Doyle, which was secured by deed of trust on the leasehold property; that by agreement, the net rents of the building were used to pay off this encumbrance; and that the respondent managed the property, paid off this debt, and afterwards continued to collect the rents and distribute the money among the lessees according to their interests, rendering annual accounts to his co-lessees, and crediting himself with his share of the rents according to his interest in the leasehold estate. The instructions o the appellants were refused, and a decree entered ordering partition of the property as prayed in the petition, and sale of the property, including leasehold and reversion, as a whole.

It is contended by the respondent that there was here a merger pro tanto of the leasehold estate in the fee when the reversion was conveyed to the respondent, and also when the respondent conveyed one-half of the reversion to Crickard, who then held one-third of the leasehold for the joint benefit of himself and Doyle. But if this is allowed, for the sake of argument, it is not easy to see how it advances the respondent's position or entitles him to the decree which he obtained. If there was such a merger, this certainly did not destroy the leasehold estate, as such. There were other lessees, and merger ““““ pro tanto” could not destroy their estate. They were tenants in possession under the lease, while the respondent, on the theory supposed, is the landlord, owning an individual interest in the reversion. To make the premises fit the conclusion, it ought to be assumed that there was a merger, not pro tanto, but a merger of the entire leasehold estate in the fee. But the two estates did not “meet, without any intervening estate, in the same persons,” and it cannot be pretended that the leasehold estate, as such, was extinguished. There was an outstanding estate in other persons, as there was in Johnson v. Johnson, 7 Allen, 196. The respondent could not be reversioner and lessee where he alone was concerned, but there was no incompatibility between his reversion and the tenancy of such of the appellants as had no reversionary interest. It is not every union of estates, even, that creates merger; and it is because there would be a sacrifice of the rights of persons in property that the doctrine has no operation where there is an intervening estate. Miller v. Talley, 48 Mo. 504.

The respondent must be held to one consistent position throughout. If there was a merger, he is then to be regarded as reversioner, and against his tenants he cannot maintain partition. If, on the other hand, he...