Tuppery v. Hertung

• Decision Date: 31 March 1870
• Citation: 46 Mo. 135
• Parties: FRANCIS TUPPERY, Defendant in Error, v. CHARLES HERTUNG, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 135

FRANCIS TUPPERY, Defendant in Error,

v.CHARLES HERTUNG, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to Second District Court.

Brown & Davis, for plaintiff in error.

To legally maintain partition, the petition must show affirmatively: 1. That the estate is held in joint tenancy, tenancy in common or coparcenery, and whether the estate is of fee, for life, for years, tenancy by curtesy, or in dower. (Gen. Stat. 1865, p. 611, §§ 1, 3; Gould's Pl., ch. 4, §§ 4-13; Stephens' Pl. 304; Myers v. Field, 37 Mo. 441; Frazer v. Roberts, 32 Mo. 457.) 2. That plaintiff is in actual possession of the realty with the defendant; the right of possession merely is not sufficient. (Lambert v. Blumenthal, 26 Mo. 473; McCabe v. Hunter, 7 Mo. 355; id. 446; Frazer v. Roberts, supra.) 3. That the intestate had title to the realty; mere seizin is not sufficient. (Frazer v. Roberts, supra; Gen. Stat. 1865, p. 611, § 3.) 4. “That the estate from which the realty has descended has been finally settled, and all claims against it fully discharged.” This is a statutory condition precedent to partition. (Gen. Stat. 1865, p. 611, § 51; 8 Cow. 369; Fithian v. Monks, 43 Mo. 520; Frazer v. Roberts, supra.)

G. H. Green, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

Error to a judgment of the Second District Court, where a judgment of the Court of Common Pleas of Cape Girardeau county was affirmed in a proceeding in partition. No exceptions are preserved, and therefore only such matters as are patent on the face of the record proper will be noticed.

We do not think that there is anything in the point that the petition is defective in not containing sufficient allegations to warrant the decree. It alleges seizin in the ancestor, and descent to the heirs, and that was prima facie sufficient to vest both title and possession. No objection was taken by answer, and the averment was substantially good.

The answer filed in the cause stated that administration had not been closed on the estate sought to be partitioned, and that a year had not elapsed since the taking out of letters of administration on the estate; that there were not sufficient personal assets to pay the debts of the deceased, and that the real estate would be required for that purpose.

With this answer standing on the record uncontradicted, the attorneys of record entered into an agreement by which they stipulated that judgment for partition should be rendered, and the proceeds arising from the sale should be subject to the debts of the deceased. In accordance with this arrangement a judgment for partition was rendered and the land ordered to be sold.

This proceeding was commenced and prosecuted to its final termination under the provisions of the partition act of 1865. The fifty-first section of that act declares that in all cases where proceedings are commenced under this chapter, and the...