State ex rel. State Park Bd. v. Tate, 45415

• Decision Date: 12 November 1956
• Docket Number: No. 45415,45415
• Parties: , 59 A.L.R.2d 933 STATE of Missouri, at the Relation of STATE PARK BOARD of Missouri, and John M. Dalton, Attorney General of Missouri, Relators, v. Joseph T. TATE, Judge of the Thirty-second Judicial Circuit of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 167

295 S.W.2d 167

365 Mo. 1213, 59 A.L.R.2d 933

STATE of Missouri, at the Relation of STATE PARK BOARD of Missouri, and John M. Dalton, Attorney General of Missouri, Relators, v. Joseph T. TATE, Judge of the Thirty-second Judicial Circuit of Missouri, Respondent.

No. 45415.

Supreme Court of Missouri, En Banc.

Nov. 12, 1956.

John M. Dalton, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., for relators.

Leo A. Politte, Washington, for respondent.

WESTHUES, Judge.

The Sandy Ford Ranch, Inc., a Missouri corporation, filed a partition suit in the Circuit Court of Franklin County, Missouri, seeking to partition two 40-acre tracts of land. The defendants named were the State of Missouri, the Missouri State Park Board, and John M. Dalton, Attorney General of Missouri. It was alleged that plaintiff owned an undivided one-half interest in one tract and the State of Missouri owned a one-half interest; that plaintiff owned a one-fourth interest in the other tract and the State of Missouri owned the other three-fourths interest.

Defendants filed a motion to dismiss the petition on the ground that this was a suit against the State and since the State had not given its consent, the suit could not be maintained. The trial judge, Joseph T. Tate, sustained the motion to dismiss as to the Attorney General, John M. Dalton, but overruled the motion to dismiss the case as to the State of Missouri and the State Park Board. The case was set for trial for May 3, 1956. After the ruling on the motion to dismiss, a proceeding in prohibition was instituted in this court by the defendants seeking to enjoin the respondent, Joseph T. Tate, Judge of the Thirty-second Judicial Circuit, from proceeding with the case. This court issued its preliminary rule in prohibition; respondent filed a return; and relators filed a reply. The case was submitted on briefs in this court on September 28, 1956.

The vital question here presented is whether a suit in partition may be maintained in a case where the State has acquired and owns an undivided interest in the land sought to be partitioned. It is a well established rule that a state by reason of its sovereign immunity cannot, unless it has given its consent, be sued in its own courts. 81 C.J.S., States, Sec. 214 p. 1300.

Is a partition suit wherein a plaintiff alleges that the State owns an undivided interest in the land sought to be partitioned a suit against the State? A test to determine whether a suit is against the State was stated in People of Colorado ex rel. Watrous v. District Court, 207 F.2d 50, loc.cit. 56(2), where the U. S. Court of Appeals, Tenth Circuit, said: 'Whether a suit is one against a state is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered.' See also 81 C.J.S., States, Sec. 216, p. 1311.

It has been ruled that an action for a declaratory judgment which does not seek any claim or affirmative or coercive relief against the state is not an action against the state. Town of Ohio v. People, 264 App.Div. 220, 35 N.Y.S.2d 107. In State ex rel. State Tax Commission v. Chavez, 44 N.M. 260, 101 P.2d 389, the court held that a suit by a city to foreclose paving assessment liens against property owned by the state was not a suit against the state.

A partition suit filed by a cotenant, as authorized by Section 528.030 RSMo 1949, V.A.M.S., is a proceeding having for its purpose a division of the land among the tenants in common or if a sale be had, a distribution of the proceeds among its coowners. It is a proceeding in rem and not in personam. 68 C.J.S., Partition, Sec. 20, p. 31. Each owner of an undivided interest in an estate owned by tenants in common has the absolute right to file a partition suit to have the land divided in kind or if that be impracticable, to have it sold and the proceeds divided among the owners. See Stewart v. Stewart, 277 S.W.2d 322, loc. cit. 324(1, 2), where Judge Stone of the Springfield Court of Appeals reviewed the law applicable to partition suits. We approve what was there said.

A grantee of an undivided interest of one tenant in common acquires all of his grantor's rights and interests and also takes the interest in the land subject to the rights of the other cotenants. 86 C.J.S., Tenancy in Common, Sec. 120 c, p. 533; see also 86 C.J.S., Tenancy in Common, Sec. 8 b, p. 370. It follows that at the time the State of Missouri acquired an...