114 Mo. 200 | Mo. | 1893
Tliis is an action in partition. The petition shows that Nellie Brady died in 1889, seized of certain real estate in Buchanan county, and left surviving her a husband and five children; that plaintiff succeeded to the curtesy interest of the husband and the share of one of the children of deceased; sets out the interests of the other defendants, and prays for partition.
The defendants demurred to the petition on the ground that plaintiff being the owner of the curtesy and the undivided one fifth interest in the remainder only was not entitled to have the land partitioned. The demurrer was sustained, and the plaintiff declining to plead further, judgment was rendered for defendants, from which plaintiff appeals to this court.
It will be observed from the foregoing statement that the sole question presented in this case for our consideration is whether the plaintiff, being the owner of the curtesy, together with an undivided one fifth interest in the remainder, is entitled to have partition of such an estate as against the other defendants, owners of the estate in remainder.
Section 7132, Revised Statutes, 1889, provides that when lands, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary including estates in fee, for life or for years, tenancy by the curtesy and in dower, any one or more of the parties interested therein may file a petition in the circuit court of the-proper county asking for. the
Does it follow then, that the plaintiff because of his having acquired the curtesy'interest of the husband, and also one fifth interest in the remainder of the estate, cannot maintain his action for the purpose of partitioning the land, and having his one fifth interest in the fee set off, and leaving the life estate, or his interest as tenant by the curtesy intact? If so, the demurrer was properly sustained; if not the cause must be reversed. We think the petition stated a good cause of action in so far as the plaintiff’s one fifth interest is concerned. The section of the statute above quoted authorized anyone owning an interest in real property, though subject to a life estate, dower or curtesy, to prosecute an action to have his interest partitioned subject to such estate. Preston v. Brant, 96 Mo. 552; Reinders Kopplemann, 68 Mo. 500; Scoville v. Hilliard, 48 Ill. 453; Otley v. McAlpine’s Heirs, 2 Gratt. 341. The