| Mo. | May 23, 1892
This is a proceeding for the partition of the southwest quarter and the northwest quarter of the southwest quarter and the north half of the southeast quarter of section 24, township 34, range 6 west, situated in Dent county, containing two hundred and eighty acres.
This record discloses the following facts: On the fourth day of June, 1870, C. C. Simmons and W. P. Billings, being seized of said lands in fee, by separate conveyances, conveyed two undivided fourths thereof in fse to Alexander L. Crawford and William L. Scott, each of which conveyances contained this stipulation: “And it is also further mutually covenanted and agreed by and between the parties to this conveyance that neither they nor' their heirs or assigns, nor any or either of them shall or will ever institute or commence or cause to be instituted or commenced any proceedings in partition or otherwise in law or equity to obtain or procure a partition, allotment or division or sale of so much or of such parts or portion of said lands as have been leased for mining purposes to said parties of the second part by deed of lease bearing even date herewith and made and executed by said Walter P. Billings and Cyrenius C. Simmons, and duly recorded in the office of the recorder of deeds of said Dent county, without the written consent of all the parties interested in said property at the time of the commencement of such proceedings, and made a part of the record thereof.”
The “deed of lease” mentioned in the foregoing stipulation was an indenture which witnessed that the said Simmons and Billings, as parties of the first part, granted, bargained, sold and conveyed perpetually and
It was provided by this deed of lease that said drawford and Scott, their heirs, assigns or legal representatives should pay to said Simmons and Billings, their heirs, assigns or legal representatives the sum of twelve and a half cents per ton gross of twenty-two hundred and forty pounds, for the one half of all the iron ore that should be mined, dug or quarried and taken away, used or sold from said lands, the payments to be made quarterly, on the fifteenth days of January, April, July and October in each year. Crawford and Scott agreed to organize a corporation under the laws of Missouri for the purpose of carrying on mining operations on said lands, which was done, the name of the corporation being “Missouri Iron
The record shows, the interests of the .parties, other than the Missouri Iron Company, in said lands to be as follows: Plaintiff one-fourth, defendant Cook dr his representatives one-eighth, and Walter and Maud Billings one-sixteenth each, all subject to the terms and conditions of the conveyances and deed of lease executed by Simmons and Billings to Crawford and Scott as above set forth.
Defendant, the Missouri Iron Company, resisted the partition of the lands on two grounds : First. It claimed to be in the adverse possession of them, and, second, it had not consented in writing to such partition as provided by the conveyances of Simmons and Billings to Crawford and Scott, dated June 4, 1870.
' Defendants, Maud and Walter Billings, were minors, and appeared by guardian ad litem, and Cook’s representatives made default.
Upon these facts the court refused partition of the lands, and the plaintiff appealed. No instructions were asked or given.
I. One tenant' in common cannot maintain an action for partition against his cotenant where he has been disseized. Wommack v. Whitmore, 58 Mo. 448" court="Mo." date_filed="1874-10-15" href="https://app.midpage.ai/document/wommack-v-whitmore-8004801?utm_source=webapp" opinion_id="8004801">58 Mo. 448.
While it is conceded that the Missouri Iron Company is in the actual possession of the lands, partition of which is sought in this case, we do not think such possession is adverse to plaintiff’s interest in them; nor does it amount to an ouster of plaintiff. Three distinct interests in the lands are created by the conveyances and deed of lease: First. All the parties
II. The real controversy here turns upon the construction and effect to be given the stipulation against the institution of partition proceedings without the written consent of all the parties, contained in the conveyances of Simmons and Billings to Crawford and Scott, dated June 4, 1870. The iron company insists that it is valid and binding, while plaintiff, on the other hand, claims that it is an unreasonable restraint upon the alienation of the property and upon the right of each party to have partition and the use and enjoyment of his interest in severalty, and, therefore, void.
Plaintiff concedes in his argument in this court that the mining right is not joint property, but is held in severalty by said company, and, hence, is not the subject of partition, and this seems to be the theory of his petition. We will, therefore, take it for granted, that plaintiff seeks partition or sale of the lands, subject to such mining right.
This brings us to the discussion of the question: Does the stipulation against the institution of proceedings for the partition of these lands without the written ' consent of all the parties preclude plaintiff from main
The civil law refused to enforce agreements perpetually waiving the right of partition. Domat says: “It is always free for every one of those who have anything in common among them to divide it; and, although they may agree to put off the partition to a certain time, yet they can make no such agreement as never to come tó a partition. Por it would be contrary to good manners that the proprietors be forced to have always an occasion of falling out, by reason of the undivided possession of a common thing.” Domat’s Civil Law by Strahan, part 1, b. 2, title 5, sec. 11, par. 9.
And Mr. Preeman in his work on cotenancy and partition, section 442, maintains that this is the rule in England and the United States. Eestraints and fetters upon the alienation and enjoyment of property are opposed to the common law and especially to the jurisprudence of to-day, which in the United States, at least, has almost wholly lost the spirit and genius of the feudal system ands feudal tenures. 9 A. L. Reg. (N. S.)393, 457. Primogeniture and estates tail with all their incidents find but little favor in the laws of this century.
The right of partition is an absolute right which yields to no consideration of hardship or inconvenience.
In the case at bar, if .the right of involuntary partition of these lands does not exist now, it will not exist five hundred or one thousand years hence. In time, by the sale and descent of undivided interests, the owners would become so numerous, and the interests so small that the estate would be almost, if not wholly, valueless. Here is a tract of land containing two hundred and eighty acres, which may be suited to agricultural and various other purposes, and the joint owners may want to have their interests'set off so that they can utilize them for such purposes. The partition in kind or sale under partition proceedings of these lands .subject to the mining right, instead of being detrimental, would be beneficial to the owner of that right for it is more difficult and unsatisfactory to deal with many than one. The many can exercise control over the lands subject to the mining right, and that is all one owner could do. Hence, there is no reason why the title to the property, subject to tnis right, should not be vested in one person, but many reasons why it should be so vested, and we hold that the stipulation in question as applied to the title to these lands, subject to said mining right, is an unreasonable restraint of their enjoyment and use, and, therefore, void.
The judgment is reversed, and the cause remanded with directions to the circuit court to decree that partition of the lands be made subject to said mining right, and, if this interest in the lands cannot be divided in kind without great prejudice to the owners, that it be