Stewart v. Stewart, 7364

• Decision Date: 24 March 1955
• Docket Number: No. 7364,7364
• Parties: Avon STEWART, Pauline Stewart Riley, Jay T. Stewart, Jr., John T. Stewart, Billy Gene Stewart and Betty Jo Stewart Blankenship, Plaintiffs-Appellants, v. Nora STEWART, Raymond Stewart, Henry J. Stewart, Barbara Jean Stewart, Peggy Joyce Stewart, Doris Stewart, Pansy Stewart, Scottie Stewart, Pink Stewart, Larry Stewart, Harry Stewart, Trudy Stewart, Fred Stewart and Jonah Stewart, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 322

277 S.W.2d 322

Avon STEWART, Pauline Stewart Riley, Jay T. Stewart, Jr.,

John T. Stewart, Billy Gene Stewart and Betty Jo

Stewart Blankenship, Plaintiffs-Appellants, v. Nora STEWART, Raymond Stewart, Henry J. Stewart, Barbara

Jean Stewart, Peggy Joyce Stewart, Doris Stewart, Pansy

Stewart, Scottie Stewart, Pink Stewart, Larry Stewart, Harry

Stewart, Trudy Stewart, Fred Stewart and Jonah Stewart,

Defendants-Respondents.

No. 7364.

Springfield Court of Appeals, Missouri.

March 24, 1955.

Web A. Welker, Portageville, for plaintiffs-appellants.

Harry H. Bock, Harold D. Jones, New Madrid, for defendants-respondents.

STONE, Judge.

In this suit to partition two disconnected tracts of land in New Madrid County, Missouri, one containing 34 acres and the other containing 53 1/3 acres, the six plaintiffs appeal from the final decree entered on August 28, 1953, which approved the commissioners' report and set off to plaintiffs, as tenants in common, the west one-third of the 53 1/3 acre tract. The determinative issue is whether each plaintiff is entitled to a segregated allotment of his or her share in severalty or whether the six plaintiffs may be compelled to take a parcel of 17.77 acres (i. e., one-third of 53 1/3 acres), as tenants in common. Both tracts were owned by John C. Stewart (hereinafter referred to as the common ancestor) who died intestate on November 29, 1951. It is conceded that the common ancestor had five sons, only two of whom survived him; that each of the six plaintiffs (children of Jay T., a deceased son of the common ancestor) has an undivided 1/30 interest in both tracts; that each of the first four named defendants, to-wit, Nora, Raymond, Henry J. and Barbara Jean (children of Henry, a deceased son of the common ancestor), has an undivided 1/20 interest in both tracts; that each of the next eight named defendants, to-wit, Peggy Joyce, Pansy, Doris, Scottie, Pink, Larry, Harry and Trudy (children of Ed, a deceased son of the common ancestor), has an undivided 1/40 interest in both tracts; and, that each of the last two named defendants, to-wit, Fred and Jonah (the two surviving sons of the common ancestor), has an undivided 1/5 interest in both tracts. Section 468.030. (All statutory references herein are to RSMo 1949, V.A.M.S.)

In their petition as originally filed, plaintiffs prayed 'that partition of said lands may be made between the plaintiffs 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 * * *.' The answer filed by the four children of Henry Stewart, deceased, prayed 'for the appointment of commissioners by the court so that the land may be divided in kind among all the owners.' The answer filed by the eight children of Ed Stewart, deceased, prayed that their shares 'be set off to them jointly as tenants in common in one parcel in kind.' The answer of Fred and Jonah, the two surviving sons of the common ancestor, prayed that their shares likewise 'be set off to them in one parcel jointly in kind.' It was averred in each of the three answers that the lands described in plaintiffs' petition could be partitioned in kind without prejudice.

In the interlocutory decree entered on March 6, 1953, the trial court found 'that each of the plaintiffs * * * are (sic) entitled to a one-thirtieth (1/30) undivided interest in and to the real estate above described,' determined the respective interests of the defendants as hereinbefore set forth, and appointed commissioners 'to make partition as herein adjudged.' In written instructions to the commissioners on March 27, 1953, it was stated, among other things, that 'if in your opinion the lands can be divided in kind you shall allot the several portions or shares to the respective parties, quantity and quality relatively considered by you, and in this connection you are instructed that two or more shares may be set off in one lot or parcel.' In their report filed on May 4, 1953, the commissioners 'set off, allotted and assigned' (1) the 34 acre tract to defendants, Fred and Jonah, the two surviving sons of the common ancestor, (2) 'an undivided one-half interest' in the east two-thirds of the 53 1/3 acre tract to the four children of Henry Stewart, deceased, (3) 'an undivided one-half interest' in the east two-thirds of the 53 1/3 acre tract to the eight children of Ed Stewart, deceased, and (4) the west one-third of the 53 1/3 acre tract to the six plaintiffs, who are the children of Jay T. Stewart, deceased.

On May 8, 1953, plaintiffs filed written objections to the commissioners' report on the grounds, among others, 'that there is no division of property made among these plaintiffs as by law required' and 'that if said report were approved * * *, these plaintiffs would still own undivided interests in real estate and the object of the partition suit would be thereby defeated.' On June 9, 1953, the court heard testimony 'both in support of and against said objections.' On July 14, 1953, 'in open court and by leave of the court, plaintiffs' petition was amended by interlineation,' and the cause was passed again until July 24, 1953, when further testimony was taken 'in support of plaintiffs' objections.' (All emphasis herein is ours.) There was no evidence at either hearing that plaintiffs had agreed to take, as tenants in common, the parcel allotted to them by the commissioners. After further continuances, the court on August 28, 1953, overruled plaintiffs' objections and entered a final decree confirming the commissioners' report. In their timely motion for new trial, plaintiffs again complained that 'neither the court or the commissioners have any authority to set off the interests of plaintiffs in one parcel when they ask that their interests be set off in severalty.'

Where a partition suit is brought fairly within the statutes [Chapter 528] and is not prohibited by a valid agreement to the contrary, the right of a cotenant to partition is absolute [68 C.J.S., Partition, Sec. 21, page 33; 40 Am.Jur., Partition, Section 83, p. 73; Thompson on Real Property (Perm.Ed.), Section 1981, p. 493; Tiffany on Real Property (2nd Ed.), Vol. 1, Section 204, p. 710] and 'yields to no consideration of hardship or inconvenience' [Haeussler v. Missouri Iron Co., 110 Mo. 188, 19 S.W. 75, 77, 16 L.R.A. 220; Flournoy v. Kirkman, 270 Mo. 1, 192 S.W. 462, 463; Mastin v. Ireland, 320 Mo. 617, 8 S.W.2d 900, 902(6)]. And, it has long been recognized that '(t)he primary object in a partition suit is to separate common interests into distinct portions of the land to be held by the respective owners in severalty' [Martin v. Trail, 142 Mo. 85, 43 S.W. 655, 658; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23, 26], or, as stated in different language, 'so to put an end to the tenancy as to vest in each of them (the cotenants) title to, and the use in severalty of, some definite part of the property owned in common so that each may take and enjoy and improve his separate estate without let or hindrance from the other' [68 C.J.S., Partition, Sec. 20, page 31]. See also 40 Am.Jur., Partition, Section 4, p. 5; Thompson on Real Property (Perm.Ed.), Vol. 4, Section 1979, p. 488; Ellis v. Cook, 205 Okl. 13, 234 P.2d 412, 414(2). It logically and necessarily follows that, upon timely request therefor in a partition suit properly brought and maintainable under the statutes, each cotenant has the right to a segregated allotment of his share in severalty. ¹

As we read their brief, defendants do not take issue with any of the stated principles. But, their argument runs along the ine that the court's instruction to the commissioners on March 27, 1953, 'that two or more shares may be set off in one lot or parcel' was 'agreed upon by all parties' and plaintiffs cannot complain because the commissioners followed that instruction; that, in the petition as originally filed, plaintiffs did not seek partition in severalty because they prayed partition 'between the plaintiffs and defendants according to their respective interests therein'; and, that amendment of plaintiffs' petition on July 14, 1953, by interlineation (1) of the averment 'that the land cannot be partitioned in kind without great prejudice' and (2) of the phrase 'in severalty' in the prayer, so that thereafter the prayer was for partition 'between the plaintiffs in severalty and defendants according to their respective interests therein,' was improper because the insertions constituted 'entirely new matter' and 'a departure from the previous pleading.'

Meticulous search reveals no record foundation for the assertion in defendants' brief that the court's instruction to the commissioners 'that two or more shares may be set off in one lot or parcel' was 'agreed upon by all parties.' Obviously, we may not accept or consider statements in the briefs unsupported by the record [Pruitt v. St. Johns Levee & Drainage Dist., 341 Mo. 120, 106 S.W.2d 467, 471(5); Heitzeberg v. Von Hoffmann Press, 340 Mo. 265, 100 S.W.2d 307, 310(6); Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647(4)], which we must take as we find it [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2)]. Moreover, as was recognized specifically in the preliminary recitals of the commissioners' report, it was their duty to make partition 'accordind to the respective rights and interests of the parties, as the same were ascertained and determined by the court'. Section 528.200; Strickler v. Means, 325 Mo. 1028, 30 S.W.2d 97, 99(3). In the interlocutory decree, the court did not 'direct that any number of shares be set off together in one parcel, and that the residue be divided among the other parties' [Section...