Stockwell v. Stockwell

• Decision Date: 19 December 1914
• Docket Number: No. 16803.,16803.
• Parties: STOCKWELL et al. v. STOCKWELL et al.
• Court: Missouri Supreme Court

172 S.W. 23

STOCKWELL et al. v. STOCKWELL et al.

No. 16803.

Supreme Court of Missouri, Division No. 1.

December 19, 1914.

1. DEEDS (§ 129)—PARTITION (§ 12)—PERSONS ENTITLED—LIFE TENANT.

Under Rev. St. 1909, § 2872, providing that, where an estate is created which would at common law be an estate tail, the grantee or devisee shall take a life estate therein and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee in tail, first pass according to the course of the common law, and section 2874, providing that the remainderman in fee takes as purchaser, not as heir of the life tenant, the grantee in a deed conveying to her and her bodily heirs has only a life estate and, in the absence of statutory authority, cannot have the property sold for partition between her and her children, which proceeding would destroy the reversion of the grantor.

2. PARTITION (§ 12)—PERSONS ENTITLED— LIFE ESTATE—STATUTE.

Rev. St. 1909, § 2559, providing that where lands are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy, and in dower, any one or more of the parties may apply for partition or for sale for partition, does not authorize a partition on application by a life tenant against the remaindermen under a conveyance to her and her bodily heirs, since her interest covers the entire estate during her life and is not susceptible of division.

3. PARTITION (§ 12)—PERSONS ENTITLED— CONTINGENT REMAINDERMAN.

Rev. St. 1909, § 2612, providing that if in any case, because of the nature of the property or the number of the owners, a partition in kind cannot be made without prejudice, an order of sale may be made, merely authorizes a sale where one or more of the owners are entitled to partition under section 2559, and does not enlarge the classes who are entitled to such relief so as to entitle a contingent remainderman to sale for partition.

4. PARTITION (§ 12) — PERSONS ENTITLED — CONTINGENT REMAINDERMAN.

The rule that joint tenancies and tenancies in common in particular estates may be partitioned, and that the holders of such estates are regarded as representing the owners of expectant estates founded upon their particular estates in the partition proceedings, does not authorize partition by the joint tenants of a contingent remainder during the continuance of the life estate, especially where the holder of the reversion is not joined.

Appeal from Circuit Court, Ray County; F. H. Trimble, Judge.

Petition by Alice M. Stockwell and another against Major A. Stockwell and others. Judgment for the defendants, and plaintiffs appeal. Affirmed.

Carolus & Wilcox, of St. Joseph, for appellants. Frank B. Fulkerson and Frederick D. Fulkerson, both of St. Joseph, for respondents.

BROWN, C.

This is a suit for partition. The petition was filed in the Ray county circuit court February 25, 1911, and states that James M. Stockwell on June 27, 1905, being the owner in fee of the N. E. ¼ of the N. E. ¼ of section 28, township 54, of range 29 in said county, conveyed it by general warranty deed to the plaintiff Alice M. Stockwell and her bodily heirs; that said grantee is now 50 years old and has two children only, plaintiff Edith Grace Stockwell and defendant Major A. Stockwell; that there is no living descendant of any deceased child; that Major A. Stockwell is a minor, and the defendant D. B. Kelley is his guardian and curator of his estate; that the interest of plaintiff Edith Grace is subject to a mortgage executed by her to Henry S. Kelley for $175, and Henry S. Kelley is now deceased, and defendant D. B. Kelley is his administrator; that the land is not susceptible of division in kind. It asks for partition, and that it be sold and the proceeds divided among the parties entitled according to their respective rights and interests, and that the present value of the life interest of Alice M. Stockwell be computed and paid to her in cash. The answer admits the facts so stated, denies the right to partition the land, and states that the interest of Alice M. Stockwell is subject to mortgage secured by her to Ralph R. Kelley to secure $200 with interest at 8 per cent., and that the heirs of James M. Stockwell, of whom there are several, are necessary parties. Demurrers both to the petition and new matter in the answer having been overruled, the cause went to trial upon an agreement substantially as set forth in the pleadings, and judgment was given for the defendants; the court holding that the estate was not subject to partition and that the heirs of James M. Stockwell were necessary parties.

1. The parties present but one question in this appeal. It is whether the life tenant and one of the two contingent remaindermen may maintain an action against the other remainderman for the sale of the land in partition under our statute, upon this title. We have used the words "under our statute" because the appellant, in his argument, distinctly invokes the statute as the authority for the proceeding, and we find nothing in the law authorizing the life tenant to call upon a court of equity to exercise its beneficent jurisdiction for the sole purpose of cutting off, by sale, the right of the contingent remainderman without giving a reason why. Nor have we been more fortunate in finding, in the principles and rules of equity, authority for his coremainderman to do the same thing. We treat the suit as a simple proceeding for the sale of the land, because all parties in their pleadings agree that it is not susceptible of physical division.

All the parties claim by deed from the owner of the fee to plaintiff Alice M. Stockwell, mother of her coplaintiff and the defendant Major A. Stockwell, who are her only descendants. The conveyance was to the grantee "and her body heirs." That this is equivalent to "her bodily heirs," or "the heirs of her body," is evident, and unquestioned by the parties. In determining the estate taken by these words, it is unnecessary to trace the rise and fall of the estate tail from the statute de donis which probably created it so long ago as the year 1285, through the struggle to judicially maintain its evident purpose exemplified in the famous case of Wolfe v. Shelley, 1 Co. 88, into our own statute of uses, which built a new structure upon the same old foundation. R. S. Mo. 1909, §§ 2872, 2874. To understand this modern structure in its application to this cause it is necessary to keep in mind its ancient foundation. The statute de donis recited that:

"Where one giveth land to another and the heirs of his body issuing," it seemed hard to the givers and their heirs that their will so expressed in the gift should not be observed, and that "after issue begotten and born between them (to whom the lands were given under such condition) heretofore such feoffees had power to aliene the lands so given and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: And further when the issue of such feoffee is failing, the land so given ought to return to the giver or his heir by form of the gift expressed in the deed, though the issue, if any were, had died; * * * the donors have heretofore been barred of their reversion."

And it accordingly enacted that:

"They to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail either by reason that there is so issue at all, or if any issue be, it fail by death, the heir of such issue failing."

We have quoted so liberally because in this statute we find the best and most perfect expression of the law of entail by which inalienable titles to lands were transmitted from parent to child, subject to the law of primogeniture, to the most remote generation, and reverted to the original donor or his heirs upon failure of issue. In this form the estate tail came to America with the common law of England.

By the Revised Statutes of Missouri 1845 (page 219, § 5), our Legislature enacted:

"That from and after the passage of this act, where any conveyance or devise shall be made, whereby the grantee or devisee shall become seized in law or equity, of such estate, in any lands or tenements, as under the statute of the thirteenth of Edward the first (called the statute of entails), would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in such premises, and no other, as a tenant for life thereof would have by law, and upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee, and if there be only one child, then to that one, in fee, and if any child be dead, the part which would have come to him or her, shall go to his or her issue, and if there be no issue, then to his or her heirs."

This statute, it will be observed, referring to the statute de donis by another name, swept the estate tail which it created out of existence so effectually that, where the tenant in tail expectant died without issue before the life tenant, the lands, at the termination of the life estate, vested in his heirs generally. It is not necessary to inquire whether this provision was inconsistent with that provision of section 7 of the same act which directed that on the termination of the life estate the persons who should be the heirs or heirs of the body of the tenant for life should be entitled to take as purchasers by virtue of the remainder limited to them, because in enacting the General Statutes (page 442, § 4) the Legislature noticed...