77 Mo. 603 | Mo. | 1883
This was a petition, in the St. Louis circuit court, for the partition of certain real estate therein specified, in which the plaintiff claimed that (by reason of certain facts and allegations therein stated) he was the owner and entitled to an undivided eleven-twelfths of said real estate; and that the defendant, Harvey, who was a minor, was the owner and entitled to the remaining one-twelfth thereof, and asked for judgment of partition accordingly.
On the trial the plaintiff offered to prove the facts stated in that part of the petition stricken out, but the court excluded it as irrelevant and immaterial, and the plaintiff excepted. Thereupon, the court found for the ■defendant Harvey, and gave judgment accordingly. From this judgment the plaintiff appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed; from which affirmance the plaintiff appeals to this court. The case is reported in 8 Mo. App. 419, where the facts of the case, the briefs of counsel, the points and authorities, as well as the opinion of the court of appeals, fully appear, to which reference is here had.
That opinion is as follows; “Hayden, J., delivered the opinion of the court: The present question turns on the propriety of the action of the court below in striking out certain parts of the petition, and excluding evidence corresponding to those facts, upon the trial. One Harvey, .a minor, was a tenant in common with the defendant Caleb Bowles and four others, of land, of which partition is asked, each party having been owner of a sixth part, and heir ■of Elizabeth Sipp, deceased. The deceased had made a will, by which she devised the land to one Sullens.
This petition for partition alleges that the six heirs, defendants here, had by deeds of warranty conveyed their interest to the plaintiff*, except that the minor, Harvey, had not conveyed the interest which he owned; that these heirs, except tbe minor, acting for all the heirs, employed •counsel to bring suit to annul the will, and none of them
The motion to strike out parts of the petition and the offer of evidence raised the questions whether the minor can be bound in the present proceeding upon the basis of the agreement, or his land subjected to contribution for a proportionate share of the agreed price of the litigation. The court below decided against the plaintiff upon these points, and decreed that partition be made upon the basis that plaintiff owned five-sixths and the minor one-sixth of the land. The plaintiff appealed.
It is unnecessary to argue the question here involved at length, as it is clear the court below was correct in its decision. The infant cannot be held liable on the basis of' the special contract, and it is not claimed he made it. It is said the infant is liable ex aequo et bono. This is a vague phrase used generally in reference to the action for money had and received, and which has no application here. If so liable, for what would the infant be held? Not certainly upon an agreement to convey one-twelfth of this land; but it is upon this agreement, or, what is the same, on the basis, of the obligation of it, that the plaintiff’s position rests.
We have given this opinion, the points and authorities as well as the reasoning and conclusions of the court, a careful examination and consideration, and believe it to contain a just and fair statement of the facts and law of the case and, therefore, concur therein. We have also examined and considered the briefs of counsel, in this court, in which the whole question is ably and elaborately re-examined and re-argued, hut after patient examination, we find no sufficient reason to change our views or depart from the conclusions so well and fully expressed in the foregoing opinion of the court of appeals.