Young v. Young

• Decision Date: 16 March 1925
• Docket Number: 24087
• Citation: Young v. Young, 270 S.W. 653, 307 Mo. 218 (Mo. 1925)
• Parties: CURTIS D. YOUNG v. EMMA LOU YOUNG et al.; WALSH FIRE CLAY PRODUCTS COMPANY, Appellant
• Court: Missouri Supreme Court

270 S.W. 653

307 Mo. 218

CURTIS D. YOUNG v. EMMA LOU YOUNG et al.; WALSH FIRE CLAY PRODUCTS COMPANY, Appellant

No. 24087

Supreme Court of Missouri

March 16, 1925

Appeal from Lincoln Circuit Court; Hon. Edgar B. Woolfolk Judge.

Affirmed.

Jourdan Rassieur & Pierce and D. E. Killam for appellant.

(1) The deed conveying to T. M. Pierce, his heirs and assigns "all mines and minerals" of every description whatsoever, including clay lying and being within or under a certain tract or parcel of land hereinafter described created a separate and distinct estate and inheritance in eight-ninths of the mines and minerals in said land. Gordon v. Million, 248 Mo. 160; Gordon v. Park, 219 Mo. 600, 613; Manning v. Coal Company, 181 Mo. 377; Snoddy v. Bolen, 122 Mo. 487; Wardell v. Watson, 93 Mo. 107; Caldwell v. Fulton, 31 Pa. St. 475; Lillibridge v. Coal Company, 143 Pa. St. 293; Coal Company v. Mellon, 152 Pa. St. 286; Marvin v. Mining Company, 55 N.Y. 536; Caldwell v. Copeland, 37 Pa. St. 427. (2) Partition can only be made between cotenants. There can be no partition unless each of the parties thereto has an interest in all of the property sought to be partitioned. Forder v. Davis, 38 Mo. 107; Simmons v. MacAdaras, 6 Mo. App., 297; 20 R. C. L. p. 733, sec. 15; Middecoff v. Cronise, 155 Cal. 185; In re Prentis, 7 Ohio 129; Harman v. Kelly, 14 Ohio 502; Brownell v. Bradley, 16 Vt. 105; Snyder's Appeal, 36 Pa. St. 166. (3) Partition will not lie in this case, as the action has been brought, because the parties in interest are not cotenants in all of the lands or interest sought to be partitioned. Before partition will lie each of the parties must own an interest in all of the parts. Each party must own some part of both the surface estate and a mineral estate severed therefrom by grant as in this case. (4) The decree rendered herein is erroneous: (a) Because it ignores the separate and distinct estate of inheritance owned by the appellant and (b) because the decree, if any, should have partitioned the surface estate among the Young heirs, and no decree should have been rendered adjudging the value of the mineral rights in the appellant and ordering same to be paid out of the proceeds of the sale of the land. This was clearly prejudicial to appellant's rights under the law.

Ras Pearson and Creech & Penn for respondent.

(1) The respondent owned an undivided one-ninth in the whole estate inherited from the estate of his father, and the deed made by his cotenants to Pierce could not operate to impair or prejudice his interest in said lands. Pellow v. Artic Iron Co., 164 Mich. 87, 47 L. R. A. (N. S.) 573; Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 139; Lee v. Fallensby, 83 Vt. 35, 138 Am. St. 1061; Good v. Coombs, 28 Tex. 34; Shepardson v. Rowland, 28 Wis. 108; Frederick v. Frederick, 218 Ill. 568; Great Falls Co. v. Worster, 15 N.H. 412; Kenaye v. Brown, 82 Miss. 607, 100 Am. St. 645; Worthington v. Staunton, 16 W.Va. 208; Southe v. Porter, 27 Me. 405; Frost v. Curtis, 172 Mass. 401; Ball v. Clark, 150 S.W. 359. (2) The court found the value of the mineral right in eight-ninths of the lands owned by appellant to be of the value of five hundred dollars, and ordered said sum to be paid appellant out of eight-ninths of the proceeds of such sale, which was the most fair and equitable order the court could have made under the circumstances.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Suit for partition of 229 acres of land in Lincoln County, of which about 190 acres is under cultivation and the remainder consists of pasture and small timber. John K. Young, the common source of title, died intestate on April 7, 1902. He was survived by his widow, Sarah E. Young, and nine children, of which respondent, Curtis D. Young, is one. The widow, Sarah E. Young, died intestate during the year 1919. By quitclaim deed, dated January 17, 1906, duly acknowledged and recorded, three of the children of John K. Young conveyed their undivided interests in the land to their mother, Sarah E. Young. By deed dated June 8, 1912, Sarah E. Young and six children of John K. Young (not including, however, the respondent and two of the children who had joined in the quitclaim deed to their mother, above referred to) for an expressed consideration of $ 500 did "grant, bargain and sell unto T. M. Pierce, party of the second part, his heirs and assigns, all mines and minerals of every description whatsoever, including clay, lying and being within or under a certain tract or parcel of land hereinafter described (being the same land involved in this suit), with the right to the said party of the second part, his heirs and assigns, of making, sinking, maintaining and using all such pits, shafts, drifts, levels, drains, watercourses and reservoirs, and of constructing, erecting, maintaining and using all such railroads, tram roads and other roads, bridges, culverts, buildings, works, engines, machinery and conveyance whatsoever, and of doing such things, in, under, upon, through or over the said lands or any part thereof, as may be necessary or convenient for searching for, working, getting, preparing, carrying away and disposing of the said mines and minerals, including clay, to be gotten therefrom, or from other lands adjacent or in the neighborhood thereto."

On April 10, 1913, T. M. Pierce and his wife, by quitclaim deed, duly acknowledged and recorded, conveyed all their "right, title and interest" in said land unto Mississippi Glass Company, a corporation, the purpose of the conveyance, as expressed in the deed, being "to convey any right, title or interest that the said parties of the first part have in and to any of the above described property, of whatsoever nature or kind, including all mineral rights, or leases, and all easements, etc., to the party of the second part."

Respondent's petition names the heirs of John K. Young, T. M. Pierce, Mississippi Glass Company and a judgment creditor of H. K. Young, a son of John K. Young, as parties defendant. It seems to be conceded on the record that the corporate name of Mississippi Glass Company has been changed to Walsh Fire Clay Products Company, and, by amendment to the petition, the last named corporation is made a defendant. The petition is in the usual form and alleges the respective interests of plaintiff and defendants in the land; that defendants T. M. Pierce, Mississippi Glass Company and its successor, the appellant herein, claim some undivided interest in the land and that respondent is not informed and does not know what interest is claimed by them and that partition cannot be made in kind without great prejudice to the owners of the land by reason of the number of the parties and diversity of their several interests, and of the location, nature and condition of said land. The prayer asks for partition according to the respective interests of the parties, and that the land be sold and the proceeds thereof divided among the parties according to such interests.

The answer of T. M. Pierce and Mississippi Glass Company, now Walsh Fire Clay Products Company, by change of name, pleads the conveyance or deed from Sarah E. Young and her six children, dated June 8, 1912, to T. M. Pierce, and the deed from T. M. Pierce and wife to Mississippi Glass Company, and that they own such interest in the land as is set out in said deeds. The answer also alleges that said defendants are not tenants in common with plaintiff nor with the other defendants in all of the lands or interests described in the petition, but that there are two separate estates or inheritances in the lands sought to be partitioned and, therefore, the lands are not partitionable in this action. Answers were filed by the other defendants, but they are not important as bearing on the issues here raised on appeal.

Trial of the cause was had by the court, without the aid of a jury. The relationship and respective interests of the heirs of John K. Young in the land are undisputed. Appellant introduced in evidence the deeds to T. M. Pierce and Mississippi Glass Company, together with the testimony of several witnesses tending to show the existence of fire clay in undetermined quantity upon or under the surface of the land in question; and that the clay or sub-surface rights of the defendant heirs was purchased for $ 500 for future use by the Mississippi Glass Company, but the testimony shows that no work, development or mining operations have been done or carried out on the land by T. M. Pierce, Mississippi Glass Company, or its successor, the appellant herein. Appellant's manager testified: "We have thousands of acres that we don't suppose we will use for fifty years." Several witnesses for appellant testified that the value of the clay or mineral rights in the land is $ 1,000 to $ 1,500, depending upon the quantity underlying the surface. At the conclusion of plaintiff's evidence, and at the close of all the evidence, the appellant filed declarations of law in the nature of demurrers to the evidence asking the court nisi to find for appellant, which declarations were overruled by the court.

Interlocutory judgment was entered by the court nisi, finding the allegations of the petition to be true and that plaintiff and defendants are seized as tenants in common, and otherwise, of the land; that respondent, Curtis D. Young, is entitled to a four twenty-sevenths interest in the surface of the land and a one-ninth interest in the clay or minerals underlying the surface; that the appellant, Walsh Fire Clay Products Company, as successor by name to Mississippi Glass Company is entitled to an eight-ninths interest in and to all mines and minerals, including clay, lying and being within and under said land and finds the value of said interest to be $ 500, which is...