108 Mo. 172 | Mo. | 1891
This is a suit for the partition of two hundred and twenty acres of land, situate in Wright county. The plaintiffs are Agnes Estes and Mary C. Estes and their husbands. They state in their petition that Manning Harris died seized of the land, leaving as his sole heirs-at-law plaintiffs and Thomas Harris, who were his children, and that they (Mary and Agnes) are each entitled to one-third part of said land. Thomas Harris was not made a party to the suit.
The defendants in the suit are Joseph R. Nell, Albert Nell, Samuel Nell, Elmer Nell, Catherine Ruckel and Joseph P. Ramey. The petition alleges that these defendants own one-third interest derived from Henry Nell, as heirs-at-law, except the two last named, who are grantees of other heirs. The answer admitted the death of Manning Harris, and that plaintiffs and Thomas Harris are his sole heirs. By a special defense defendants admit that Manning Harris, deceased, was the common source of title, but set up in defense an equitable title from him to Henry Nell, deceased, under whom they claim and they asked that the legal title be decreed them. They also pleaded that they were in the actual possession of the land, holding it adversely to the plaintiffs.
Plaintiffs replied averring that the equitable claim set up in the answer had been adjudicated in a former suit between the parties ; and also that they had recovered their joint possession of the premises in a suit
On the trial plaintiffs read in evidence the will of Henry Nell, deceased. By this will forty acres of land was devised to defendant Della. The executors' were directed to sell the balance of the land and divide the proceeds among his heirs, all of whom were named. One of these named as Ou Edna is not a party to this suit.
Upon the reading of this will defendants offered a demurrer to the evidence which was sustained, and final judgment was entered for defendants. From this judgment plaintiffs appealed. It is thus disclosed, from the allegations of the petition, that Thomas Harris as one of the heirs of Manning Harris, deceased, owns an undivided one-sixth of the land to be affected, and is not made a party to the suit. The will read in evidence also shows that one .of the heirs of Henry Nell is not a party to the suit. These facts appearing from the pleadings and evidence, should a judgment of partition have been rendered ?
The rule in partition suits, when conducted in chancery, was that unless all persons whose “interests in the subject-matter of the suit, and the relief sought, were bound up with that of others” were brought before the court and made subject to its jurisdiction, the suit would not be entertained. “ It was, therefore, indispensable that all the cotenants not uniting in the petition be made defendants.” Free, on Coten. & Part., sec. 463; Barney v. Baltimore City, 6 Wall. 284; Shields v. Barrow, 17 How. (U. S.) 130. This rule in equity is made to apply to our statutory proceedings for partition (sec. 7135) providing that “every person-having any interest in such premises, whether in possession or otherwise, shall be made a party to such petition.” Dameron v. Jamison, 71 Mo. 97.
The pleadings and evidence thus showing that persons interested in the land were not parties to the
Defendants set up in their answer that they were in the exclusive possession of the land holding adversely to plaintiffs. This was denied by the replication. An issuable fact was thus presented, the burden of proof being on defendants. Wommack v. Whitmore, 58 Mo. 457; Shaw v. Gregoire, 41 Mo. 407. No evidence was offered by defendants to sustain this allegation, and, if the parties to the suit were tenants in common, the presumption was that their possession was common. Shaw v. Gregoire, supra; Lambert v. Blumenthal, 26 Mo. 473.
If all necessary parties had been before the court the trial should have proceeded. For a mere defect of parties the judgment should not have been made such as to conclusively adjudicate the matters pleaded. Defendants should have been allowed, on equitable terms, to bring in the necessary parties, or the judgment should have been without prejudice to the rights of plaintiffs to prosecute another suit.
Plaintiffs having failed to ask leave to bring in new parties and making no objections to the form of the judgment, the judgment is reversed and the cause remanded, with directions to modify the judgment as herein indicated, if plaintiffs desire that it should be done, appellants to pay costs of appeal.
