24 Mo. 385 | Mo. | 1857
delivered the opinion of the court.
We are of the opinion that the court did not err in rejecting the supposed record of partition among tho-se styling themselves
Those who are competent to contract may make such partition among themselves as they please, and it will be binding but where partition is made by writ of partitione facienda, there it is otherwise ; all the tenants, or those whose rights may be affected by it, should be parties. (Coke, 180 a.)Francis Bompart had an interest in the land. He was dead. It. appears that he had heirs. Now they should have been parties.. Even if their interest was by way of remainder or reversion* they should have been. (Burnhans v. Burnhans, 2 Barb. Ch. 398.) When we see by the record that there are parties who should have been joined, but who were not, whose portions have not been allotted to them, do we not see that the whole thing.' must necessarily be erroneous; that in giving those who are1' unprovided for in the partition their shares afterwards all the previous allotments must be set aside ?
As to the points that the partition was binding as a voluntary'' one without the sanction of the court, and that it was made ■ binding by the subsequent recommendation of the parties, we-are of the opinion that such a mode of making a partition will5 be binding when the parties are all sui juris and bind themselves by a proper agreement. Had the agreement been relied:
The principle that a parol partition, followed up by possession, will be valid and sufficient to sever the possession, is only applicable to those cases where there is a title and it is admitted to be in common ; that is, where the parties are admitted to have a title, and are joint tenants or tenants in common with respect to it. In such a case there can be no question of title. The dispute can only be whether the limits of each one’s possession have been settled. If they have been, there is a valid partition when possession has followed the adjustment. Very different is the case where the title of those setting up such a tenancy in common is denied. There the partition of itself can confer no title. It, together with adverse possession for twenty years, or with such acts and conduct on the part of those as
If, as was insinuated, there was an agreement between the heirs of Mrs. Delorier by Bompart, and those by Delorier, that the lands inherited from their respective parents should form a joint inheritance to be equally divided among them, we would suppose that if the heirs on the part of Delorier deny to the heirs of Bompart any portion of their inheritance, then they would be prepared to yield up any interest they may have received in the inheritance of the Bomparts. We do not see why they may not be compelled to this. But we will not go into this matter, as the record is silent in regard to it.
the judgment will be affirmed;
Leowake, ¿fudge, by reason of indisposition, was necessarily absent dar-dng idle greater part of this ¡term, and .consequently sat at the hearing of hut Sfew cases. — £ Rep.