144 Mo. 241 | Mo. | 1898
This is a proceeding in equity for an injunction, and to confirm a parol partition to lands.
In 1886 Ezra Huntley died, seized of large tracts of land in Jasper county and elsewhere. By his will he left his wife, Mary, one third of his property, real and personal, for life, “and after her death the same to be divided equally, share and share alike, between my sons and daughters,” and in case of the decease of any of his children before the death of his wife, the share of such child to go to the heirs of the body of such deceased, and if there were no heirs,.said share to be divided equally between the surviving children. The remaining two thirds of his property he left to his two sons, George and Jasper, and his two daughters, Mary Guliek and Rosener Steinmetz; the sons to have their portions absolutely, and the daughters for life, remainder to their children. Rosener died before her father, leaving children. He provided in his will that the probate court of Jasper county should appoint commissioners to make partition of the property in the manner specified. After his death George Huntley, the executor, petitioned the probate court to appoint commissioners as the will directed. The court did so. The commissioners partitioned the property in conformity to the directions of the will, and because the real property could not be equally divided, they made the shares equal out of the personal property of the estate. They did not provide for a partition of the one third set apart to the widow after her death. The probate court
The circuit court held the partition by the probate court to be void, and appointed commissioners to partition the property. The commissioners allotted each party identically the same property that was allotted each by the action of the probate court, but they found that the share that had been allotted to Mary Gruliek was worth $650 less than the shares that had been
George and Jasper Huntley and the First National Bank of Carthage appealed.
I. Although the partition by the probate court had no binding force or validity, still as it was confessedly equitable, fair and just, and as the parties in interest, the adults for themselves and the father and guardian of the heirs of Rosener, acquiesced in the allotment, took possession of their respective shares, and improved them, mortgaged and aliened them at will, and this status continued from 1886 until 1895, and was never interrupted until by the outside interference of a creditor of the two sons, it constitutes a good parol partition inter sese, which can not be disturbed or avoided by any one who was sui juris during that time. Hazen v. Barnett, 50 Mo. 507; Nave v. Smith, 95 Mo. 600; Sutton v. Porter, 119 Mo. 100. And this is true even where one of the parties is a married woman, if it app'ears that it was an equitable, fair and equal division. Sutton v. Porter, 119 Mo. 100. Any of the parties to such a parol partition can afterward have the parol agreement confirmed by a decree in equity. Hazen v. Barnett, 50 Mo. 506. Any of the devisees of Ezra Huntley had a right to maintain this . action to have the parol partition confirmed and upon the showing made in this case the court should have entered a decree confirming that partition. It was error to proceed ah initio, under the issues in this case, to partition the lands. There was no evidence whatever upon which to base the judgment that Mary
The decree attempting to make a partition in this respect is no partition at all. It simply declares what
II. The chancellor properly gave priority to the conveyances and mortgages made and given by George and Jasper over the judgment against them in favor of the bank. They were valid instruments, properly made and duly recorded. They applied to specific parts of the property allotted to them respectively by the parol partition. They were good against the grantors and all persons claiming under the grantors. The judgment in favor of the bank was subsequent in time to these conveyances. The theory of the learned counsel for the bank is that the original partition was void, that the mortgages and conveyances attempted to convey specific lands when no specific lands had been allotted to them, and that in' order to be entitled .to priority over the claim of the bank, the grants should have been of the undivided'interest of George and Jasper in the whole property, and as they were not so framed, and as his levy was so made, the bank has obtained a priority. But as we hold that the parol partition was good, the contention of the bank necessarily fails, the execution in favor of the bank was wrongful by as much as it affected any part of the property except that allotted by the parol partition to George and Jasper, and the decree of- the circuit court in fixing priority was correct.
In a suit for partition under the statute this would have been, proper. R. S. 1889, sec. 7182; Frank v. Crawford, 14 Mo. A. 599; Zellee v. Bobb, 13 Mo. A. 581; Bank v. King, 73 Mo. 590. But this is a proceeding in equity to obtain a decree confirming a valid parol partition, and not a suit for 'partition under the statute. It is confirmatory and not initiative in its character. Hence the statute has no application and there was no more power in the court to allow attorney’s fees and make them a lien on the land of the defendants, or even that of the plaintiffs, in this case than there is in any other proceeding at law or in equity where no statutory regulation obtains.
The judgment of the circuit court will therefore be reversed and the cause remanded with directions to enter a decree confirming the parol partition, subjecting the interests allotted to George and Jasper Huntley to their respective grants of the same and afterward to the judgment of the bank against them, subordinated to their homestead rights, if any, in the land, and restraining the enforcement of the execution against any of the property allotted to the other devisees by the parol partition.