State v. Ellison

• Citation: 290 Mo. 28,233 S.W. 1065
• Decision Date: 22 July 1921
• Docket Number: No. 22593.,22593.
• Parties: STATE ex rel. ROLL et al. v. ELLISON et al., Judges.
• Court: United States State Supreme Court of Missouri

233 S.W. 1065

290 Mo. 28

STATE ex rel. ROLL et al. v. ELLISON et al., Judges.

No. 22593.

Supreme Court of Missouri, in Banc.

July 22, 1921.

Rehearing Denied Oct. 8, 1921.

Certiorari by the State of Missouri, on the relation of Hattie Roll and others, against Hon. James Ellison, and others, Judges of the Kansas City Court of Appeals. Judgment and opinion of the Kansas City Court of Appeals (226 S. W. 590), quashed.

Pope & Lohman, of Jefferson City, for relators.

Irwin & Haley, of Jefferson City, for respondents.

JAMES T. BLAIR, C. J.

The writ brings into this court the record of the Kansas City Court of Appeals in the case of Francis Elliott v. Hattie Roll et al. (App.) 226 S. W. 590. From the opinion in that case it appears that the facts are that Francis Elliott arid Nancy S. Elliott were husband and wife; that during the marriage Francis Elliott bought and paid for a tract of land and caused the deed to be made to himself and Nancy S., his wife; that subsequently Nancy S. procured a divorce from Francis; they had no children. Soon after the decree of divorce was rendered Francis brought suit against his former wife to partition the land. She died, and these relators, her children by a former marriage, were made defendants. The parties agreed that the land should go to sale and the proceeds be divided according to the rights of the parties in the land. The trial court adjudged that Francis Elliott was entitled to a sum equal to the purchase price ($950) he had paid and one-half the balance. The remainder, $60.53, was adjudged to belong to defendants.

The Court of Appeals held: (1) That when Elliott bought and paid for the land and caused the deed therefor to be made to himself and his wife the two became tenants by entireties; (2) that there was a presumption that Elliott intended a provision for his wife; (3) that if there had been no divorce she would have held her interest as tenant by the entirety "wholly free from any claim by him in advancement of purchase money"; (4) that the. divorce "cut out survivorship and changed the estate into one in common, and after the decree they held it as tenants in common"; and (5) that, "when the estate becomes one in common and partition is sought, the parts advancing the purchase money is entitled to the amount advanced, and the balance may be divided between them as was done by the circuit court." The judgment was affirmed.

This last proposition is said to be in conflict with decisions of this court. There is no question that upon the purchase and execution of the deed to them Nancy and Francis Elliott became tenants by entireties. The purchase was made by the husband with his means, and the presumption is that he took the deed as he did as a provision for his wife. There is no evidence to rebut this presumption. In case he had died before the dissolution of the marriage the wife would have taken the whole, by her right of survivorship. The divorce dissolved the marriage, and the tenancy by entireties was thereby converted into a tenancy in common. A right to partition thereupon arose. Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581.

The rights of Mrs. Elliott came from...