Sutton v. Porter

• Decision Date: 23 December 1893
• Citation: 119 Mo. 100,24 S.W. 760
• Parties: SUTTON et al. v. PORTER et al.
• Court: Missouri Supreme Court

24 S.W. 760

119 Mo. 100

SUTTON et al. v. PORTER et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1893.

PARTITION — BY ACT OF PARCENERS — MARRIED WOMEN.

1. A voluntary partition by exchange of deeds will not be disturbed because two of the parceners, being married women, were not joined by their husbands in the deeds. Such deeds remain as evidence of a parol partition, which, if fair, and followed by possession, will be confirmed by the court.

2. It is no objection to a parol partition that one parcener did not take her share in kind, if she sold it for cash and notes to another.

3. A parol partition is not void because not joined in at the time by one parcener, who later takes possession of her parcel, and sells it.

Appeal from circuit court, Clark county; Ben. E. Turner, Judge.

Suit by Esther J. Sutton and Deborah Dewey against Mary Porter and others for partition. Decree for defendants. Plaintiffs appeal. Reversed pro forma.

E. R. McKee and J. W. Howard, for appellants. W. L. Berkheimer, for respondents.

BLACK, C. J.

Alexander Porter died intestate in 1869, the owner of 360 acres of land, leaving a widow and eight children. The two married daughters, Esther J. Sutton and Deborah Dewey, and their husbands, brought this suit for partition, making the widow and other children defendants. The record discloses the following facts: Arthur Porter, one of the children, conveyed his interest to his brother James E. Subsequent to this conveyance, and on the 28th March, 1888, the widow and children met at her house, and agreed to make partition. The widow, Mary Porter, agreed to take a child's part, though entitled to a third of the land for life, thus making nine parts, of 40 acres each in quantity. The parties appraised each 40, and then made their selections. In making the selections, Mrs. Dewey agreed to let her brother William A. have her share, for which she then received $80 in cash, and three notes of William A. for $600. James E. Porter also selected two shares because of his purchase of the interest of Arthur. It appears May C. Porter was present, but took no part in selecting her share, because it was supposed she was a minor. A 40-acre tract was, however, set apart for her. After the selections had been made, the parties, except May C., executed quitclaim deeds conveying to each the parcel or parcels so selected; that is to say, to Esther J. Sutton, Mary Porter, John A. Porter, and Lucy Porter 40 acres each, and to William A. Porter and James E. Porter 80 acres each, leaving unconveyed the 40 acres reserved for May C. Mrs. Dewey accepted for her share the $80, and three notes of William for $600. The deeds were all executed on the 28th March, 1888, and the grantees then took possession of their respective parcels. The husbands of Mrs. Sutton and Mrs. Dewey were not present, took no part in making the partition, and did not join in any of the deeds. At that time, May C. Porter, for whom the 40 acres was reserved, was in fact over the age of 18 years. On the 15th October, 1889, she sold the 40 to her brother James, and gave him a bond for deed. The bond sets out, by way of recital, the partition before made, and states that this 40 was allotted to her. The plaintiffs bring into court the deed to Esther J. Sutton, the $80 paid to Mrs. Dewey, and the notes for $600 executed to her by William. They offer to surrender the money, and consent that the deed may be canceled, and pray for partition. The defendants, in their answers, set up the facts before mentioned, and ask that the partition made by the parties themselves be in...