Stewart v. Stewart
| Decision Date | 14 June 1954 |
| Docket Number | No. 2,No. 44036,44036,2 |
| Citation | 269 S.W.2d 49 |
| Parties | STEWART et al. v. STEWART et al |
| Court | Missouri Supreme Court |
Web A. Welker, Portageville, for appellants.
Harry H. Bock, Harold D. Jones, New Madrid, for respondents Fred Stewart and Jonah Stewart.
This is a partition suit, the subject matter being two parcels of real estate in New Madrid County--one tract consisting of 34 acres, and the other 35 1/3 acres. The land was owned by John C. Stewart in his lifetime. John C. Stewart died intestate on November 29, 1951. Deceased had five sons--Fred and Jonah, who survived him; Jay T. Stewart, who died March 7, 1929; Henry Stewart, who died March 10, 1948; and Ed Stewart, who died June 4, 1950. The plaintiffs, Avon Stewart, Pauline Stewart Riley, Jay T. Stewart, Jr., John T. Stewart, Billy Gene Stewart, and Betty Jo Stewart Blankenship, are children of Jay T. Stewart, deceased. Defendants Nora Stewart, Raymond Stewart, Henry J. Stewart, and Barbara Jean Stewart are children of Henry Stewart, deceased. Defendants Peggy Joyce Stewart, Pansy Stewart Doris Stewart, Scottie Stewart, Pink Stewart, Larry Stewart, Harry Stewart, and Trudy Stewart are children of Ed Stewart, deceased. Jonah Stewart and Fred Stewart, the surviving sons of John C. Stewart, and Fred Stewart as Administrator of the Estate of John C. Stewart, deceased, were also made defendants in said cause. However, the cause as to Fred Stewart as Administrator of the Estate of John C. Stewart, deceased, was thereafter dismissed.
It is conceded by all concerned that plaintiffs and defendants are tenants in common. The six plaintiffs are each entitled to a one-thirtieth interest, having a total interest in the land of one-fifth; the four children of Henry Stewart, deceased, are each entitled to one-twentieth interest, having a total interest in the land of one-fifth; and the eight children of Ed Stewart, deceased, are each entitled to a one-fortieth interest, having a total interest of one-fifth. Defendants Fred Stewart and Johah Stewart, the surviving sons of John C. Stewart, are each entitled to a one-fifth interest. Section 468.030 RSMo 1949, V.A.M.S.
The prayer of the plaintiffs' petition was 'that partition of said lands may be made between the plaintiffs (in severalty) and defendants according to their respective interests therein; and if partition in kind cannot be made without great prejudice to the owners, that the same may be ordered sold and the proceeds divided among the said parties in proportion to their respective interests, and that the defendants be required to account for the rents, profits of occupancy, and use of said lands for the time they have farmed and operated the same and for the crops matured thereon at the time of the death of John C. Stewart, and for such other and further orders, decrees and relief as to the court may seem meet and just in the premises.'
In their answer, defendants Jonah Stewart and Fred Stewart, and Fred Stewart as Administrator of the Estate of John C. Stewart, deceased, prayed that their share in said property be set off to them in one parcel, jointly in kind. A like answer was filed by the defendants who were the children of Edward Stewart, deceased. The remaining defendants, children of Henry Stewart, filed an answer in which they alleged that: 'the property in controversy can be divided in kind without prejudice to any of the owners and pray for the appointment of commissioners by the Court so that the land may be divided in kind among all the owners.'
Thereafter, commissioners were appointed. The commissioners were instructed to make partition according to the respective rights and interests of the parties; that if in their opinion the lands involved could not be divided in kind without great prejudice to the owners, they should report said fact to the court in writing; that if in their opinion the lands could be divided in kind they should allot the several portions or shares to the respective parties, 'quantity and quality relatively considered'; and in that connection they were instructed that two or more shares could be set off in one lot or parcel. The commissioners were then ordered to report to the court as to the manner of executing their trust, and instructed that should they divide the land or any part thereof in kind, their report should describe the respective shares allotted to each party or parties, showing the quantity of each share, the boundary, courses, and distances of same.
The commissioners filed their report, setting off to Fred Stewart and Jonah Stewart the 34 acre tract; to defendants Nora Stewart, Raymond Stewart, Henry J. Stewart and Barbara Jean Stewart, an undivided one-half interest in the east two-thirds of the 53 1/3 acre tract; to defendants Peggy Joyce Stewart, Doris Stewart, Pansy Stewart, Scottie Stewart, Pink Stewart, ...
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Dowd v. Lake Sites, Inc.
...suggest we may not have jurisdiction over the appeal, stating that title to real estate is not involved. They cite Stewart v. Stewart, Mo., 269 S.W.2d 49, 51, a partition suit wherein the only controverted issue was the method in which the partition was to be accomplished, there being no co......
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