Willhite v. Rathburn

• Decision Date: 12 June 1933
• Docket Number: 30875
• Citation: 61 S.W.2d 708,332 Mo. 1208
• Parties: William M. Willhite, Guardian and Curator of the person and estate of Mattie M. Rathburn, a person of unsound mind, v. Roy Rathburn, Jessie Rathburn Moore, George B. Moore, her husband, Otie Rathburn Moore, C. E. Moore, her husband, Lucille Rathburn Knudson, R. N. Knudson, her husband, and Gladys Rathburn, Appellants
• Court: Missouri Supreme Court

61 S.W.2d 708

332 Mo. 1208

William M. Willhite, Guardian and Curator of the person and estate of Mattie M. Rathburn, a person of unsound mind, v. Roy Rathburn, Jessie Rathburn Moore, George B. Moore, her husband, Otie Rathburn Moore, C. E. Moore, her husband, Lucille Rathburn Knudson, R. N. Knudson, her husband, and Gladys Rathburn, Appellants

No. 30875

Supreme Court of Missouri

June 12, 1933

Appeal from Vernon Circuit Court; Hon. Chas. A. Hendricks Judge.

Affirmed in part and reversed and remanded in part (with directions).

H P. Ziegler and G. C. Dalton for appellants.

(1) The court erred in holding that the land conveyed in the deed from Jeremiah Willhite and wife to Mattie M. Rathburn, their daughter, vesting in her a life estate with the remainder or fee vesting in her children, could be partitioned, without the consent of her children. Carson v. Hecke, 222 S.W. 850, 282 Mo. 580; McConnell v. Bell, 114 S.W 203. (a) Owner of land died, leaving husband and five children; plaintiff succeeded to curtesy interest of husband and the share of one child, the court held: "We think the petition stated a good cause of action in so far as the plaintiff's one-fifth interest is concerned." Atkinson v. Brady, 21 S.W. 480, 14 Mo. 200; Stockwell v. Stockwell, 172 S.W. 23, 262 Mo. 671; Hill v. Hill, 168 S.W. 1165, 261 Mo. 55. (b) Revised Statutes 1919, section 1995, provides for four distinct and separate classes of parties plaintiff, or defendants: (1) Cotenants in fee; (2) Cotenants for life; (3) Cotenants for years; and (4) Cotenants by curtesy and in dower. That all of the parties both plaintiffs and defendants must belong to one and the same class in order that partition of the premises may be made under the statute. There may be partition among the cotenants in fee but not of the cotenants in fee and the life tenant. Byars v. Howe, 276 S.W. 43, 311 Mo. 14. (c) Under the above section as to partition, such suit does not lie by life tenant and her husband against remaindermen in fee. Gray v. Clement, 246 S.W. 940, 296 Mo. 497; Carson v. Hecke, 282 Mo. 580, 222 S.W. 850; White v. Summerville, 283 Mo. 268, 223 S.W. 101. (2) The court erred in holding that the estate which is, the remainder in fee, vested in the appellants, who are the children of Mattie M. Rathburn, the life tenant, could be partitioned in an action brought by the life tenant against them, therefore the court erred in refusing to give defendants' declarations of law numbered 1, 3 and 4. (a) Under R. S. 1909, sec. 2872, a conveyance to the grantee "and her bodily heirs," creating an estate tail at common law would have given the grantee a life estate and the heirs of her body the remainder in fee. Byrne v. France, 33 S.W. 178, 131 Mo. 639; Bone v. Tyrrell, 20 S.W. 796, 113 Mo. 175; Todd v. Connor Inv. Co., 226 S.W. 955, 285 Mo. 416; Williams v. Reid, 37 S.W.2d 539; Shaw v. Bank of Dearborn, 23 S.W.2d 20; Hunter v. Patterson, 44 S.W. 250, 142 Mo. 310; Charles v. White, 112 S.W. 545, 214 Mo. 187; 6 Ballard on Real Property, sec. 299; Lariverre v. Rains, 112 Mich. 276, 70 N.W. 583. (3) Sections 1995-a and 1995-b of Sessions Laws of 1925 are an attempted addition to existing laws and embodying entirely new subject matter from what exists in the former laws, therefore there should appear in the caption of the act one subject only and it shall be duly expressed in the title, whereas there is nothing expressed in the caption of this act and it contains two subjects, namely: (a) who may bring equity suit; (b) parties to the suit. Session Laws 1925, secs. 1995-a and 1995-b; State ex rel. Green County v. Gideon, 210 S.W. 358, 277 Mo. 356. There is nothing in the title of the act, the sections of which are cited above, to give notice to one that it contained provisions attempting to give additional right to a designated class of persons to partition land and sell the fee for that purpose, etc., and since this was not embodied in the title of the act we believe it is in contravention to Art. 4, Sec. 28 of the Constitution. As in case where penalty left out of caption the act was held void. State v. McEniry, 190 S.W. 272, 269 Mo. 228.

Homer M. Poage and A. N. Gossett for respondent.

(1) There was ample evidence to sustain the finding of the lower court that the life estate was burdensome and unprofitable as postulated in the Equitable Partition Act of 1925. Laws 1925, p. 138; Sec. 1546, R. S. 1929. This court in such cases will defer to and not disturb the decision of the chancellor below. Waddington v. Lane, 202 Mo. 416. (2) The title of the Act of 1925, Laws 1925, p. 138, contains but one subject and that is clearly expressed, viz, -- "To amend Article 11, of Chapter 13 of Revised Statutes of Missouri, relating to Partition of Lands by adding two new sections thereto to be known as Section 1995a and 1995b." The catch words, -- "Civil Procedure; Relating to Partition and Sale of Real Estate" are no part of the act and would not invalidate it if they were. Clearly only one subject is embraced and that is clearly expressed in this title of the act. Art. IV, Sec. 28, Constitution of Mo.; Southard v. Short, 320 Mo. 932; State ex rel. v. Imhoff, 291 Mo. 619; Ex parte Hutchins, 296 Mo. 331. (3) While prior to this act the Legislature had never given the courts of Missouri jurisdiction in partition to adjudge in behalf of a life tenant the partition of lands against a remainderman, either vested or contingent, yet such power does reside in the General Assembly to grant such jurisdiction and the Act of 1925 efficiently does so. (Laws 1925, p. 138; Secs. 1546, 1547, R. S. 1929). Duncan v. Duncan, 324 Mo. 167; Gibson v. Gibson, 280 Mo. 519; Hill v. Hill, 261 Mo. 55; Gray v. Clement, 286 Mo. 100; Buckner v. Buckner, 210 S.W. 887; Rupp v. Moliter, 9 S.W.2d 609, 320 Mo. 938; Byars v. Howe, 311 Mo. 14; and cases cited, infra, under Point Four. (4) This legislative power exists and the act is valid and constitutional as to all remaindermen, either vested or contingent, and in esse or unborn, at the time the equitable partition suit is commenced. Duncan v. Duncan, 324 Mo. 167; White v. Campbell, 316 Mo. 949; Rupp v. Moliter, 9 S.W.2d 609, 320 Mo. 938; Byars v. Howe, 311 Mo. 14; Reinders v. Koppelman, 68 Mo. 482; Lobrano v. Nelligan, 9 Wall. (U.S.) 295, 19 L.Ed. 694; Miller v. Ry. Co., 132 U.S. 662, 33 L.Ed. 487; Lindley v. Hubbard, 44 Conn. 109; Geary v. Butts, 99 N.E. 492; Clark v. Van Surlay, 15 Wend. (N. Y.) 436; Sohier v. Mass. Genl. Hospital (Mass.), 3 Cush. 483. (5) The rule or doctrine of representation applies to all persons not in esse, they being under that rule represented by the persons in existence having estates vested or contingent in the land. See the authorities, supra, under Points 3, 4. (6) The act is of a remedial nature to provide for cases not theretofore provided for and necessary, in many cases, to prevent loss of the land and the interests of all persons therein, both the life tenant and the vested and contingent remaindermen, and thereby to prevent complete destruction of the donor's gift and intention. White v. Campbell, 316 Mo. 949; other cases cited under Points 3, 4.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Mattie M. Rathburn a person of unsound mind is the owner of a life estate in 240 acres of land in Vernon County. This suit in equity seeking a decree of the circuit court of that county for a sale of the land was brought by her guardian and curator under what is now Sections 1546 and 1547, Revised Statutes 1929. The decree ordered the land sold in the manner provided by said sections and from the decree and judgment of the trial court the defendants have appealed.

By warranty deed, regular in form, dated May 18, 1904, Jeremiah Willhite and Matilda H. Willhite, husband and wife, parents of Mattie M. Rathburn, conveyed the 240 acres of land to the said "Mattie M. Rathburn and her bodily heirs." The conveyance "would have created an estate tail at common law, which by our statute, Section 3108, Revised Statutes 1929, was converted into a life estate in the first taker," Mattie M. Rathburn, "with a remainder in fee over to those who should prove to be the heirs of her body at her death." [Williams v. Reid (Mo. Sup.), 37 S.W.2d 537.] In 1923 Mattie M. Rathburn was adjudged to be of unsound mind and a guardian and curator was appointed who brings this suit.

In 1925 the General Assembly amended what was then Article 11 of Chapter 13, of the Revised Statutes of 1919, relating to partition of lands, by adding two sections thereto (Laws 1925, p. 138) numbered Sections 1995-a and 1995-b (now Secs. 1546 and 1547, R. S. 1929), as follows:

"Sec 1995-a. Whenever under or through any deed, conveyance or will, heretofore or hereafter made, an estate for life, or a conditional or contingent or other estate of uncertain vesting or duration is created, or provided for in lands with remainder over or reversion, whether absolute, contingent or conditional, or an estate in lands is created, or provided for, to commence or to vest in the future, either absolute contingent or conditional, any person or persons holding the estate or an interest in the estate, carrying the right of immediate use and enjoyment of such lands, may sue in equity for sale of such lands or any of the same upon the ground that the life or other estate of immediate enjoyment is burdensome and unprofitable for that the cost of paying the taxes and assessments thereon and holding, maintaining, caring for and preserving the lands from waste, or injury, and deterioration, exceeds the reasonable value of the rents and profits thereof, and that a greater income can probably be had from proceeds of a sale thereof invested in bonds of the United States or of Missouri or some municipality or school...