144 Mo. 348 | Mo. | 1898
This is an action for the partition of a lot in the city of Butler, Missouri. The petition, leaving off the formal parts, is as follows:
“The plaintiffs above named state that at the time of his death one Harrison McReynolds was the owner of, and had title to, the following described real estate in the county of Bates and State of Missouri, to wit: The east one third of lot number two in block number two in the city of Butler in said county. Plaintiffs state that on-day of- 1888, the said Harrison McReynolds died in Bates county aforesaid, leaving a will that has been admitted to probate in the probate court of said county where the estate of said decedent has been fully settled, except that the debt, secured by a deed of trust upon the property aforesaid, and hereinafter more particularly referred to, has not been fully discharged, although the same has^not been proven as a claim against the real estate aforesaid. Plaintiffs state that on the- of -, 1886, said decedent together with his wife, the defendant, Elizabeth McReynolds, by their deed of trust conveyed the real estate aforesaid to Jarvis, Conklin & Co., to secure to-them the payment of a note for fifteen hundred dollars, payable on the first day of July, 1891, with interest at the rate of seven per cent per annum. Plaintiffs state that said debt is unpaid except that all interest due thereon to the first day of July, 1895, has been paid.
The defendants Elizabeth McReynolds, Jessie Mc-Kibben and Frank McKibben, demurred to the petition for the following grounds of objection: First, that it fails to allege who the owners of the premises were at the time of filing the petition as required by law; second, that it fails' to allege who was in possession of said premises at the time of the filing of the petition as required by law; third, that the petition fails to allege any facts as to why the premises sought to be partitioned can not be partitioned in kind; fourth, that by their petition the plaintiffs seek to partition and sell the life estate of defendant Elizabeth McReynolds contrary to law.
The demurrer was sustained, and plaintiffs declining to plead further, the' petition was dismissed and judgment rendered against them for costs. They appealed.
It is apparent from a casual reading of the petition that the first ground assigned in the demurrer was not well taken, as the petition alleges that Harrison McReynolds was the owner of and had title to the land in question; that he died on the-day of-, 1888, leaving a will which was duly admitted to probate, by which he devised to the defendant Elizabeth McReynolds, a life estate in the real estate described in the petition, and the remainder therein to , the defendants and one George McReynolds, as thereinafter particularized, and is susceptible of no other meaning
As to the second ground of demurrer it is sufficient to say, as the petition shows that the parties to the suit are owners of the land in the absence of anything appearing to the contrary, possession of it by them will be presumed, and if there is an adverse holding it is matter of defense.
With respect to the third ground of demurrer, the petition alleges that “said real estate is not susceptible of division in kind without destroying its value” and the averment of other facts why it could not be partitioned in kind were unnecessary. This allegation was sufficient to present that issue and if defendants desired to raise it they could have done so by answer.
By the fourth ground of demurrer the question is raised as to whether the remainder interest, or the interest of the heirs of Harrison McEeynolds, subject to the life estate of his widow, Elizabeth McEeynolds, is subject to partition.
By section 7132, Eevised Statutes 1889, it is provided that “where lands, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, including estates in fee for life or for years, tenancy by the curtesy and in dower . . . any one or more of the parties interested therein may file a petition in the circuit court of the proper county asking for the admeasurement and setting off of any dower interest therein and partition.of the remainder.” Defendants contend that plaintiffs, as the owners of the remainder interest, are not cotenants with the defendant Elizabeth McEeynolds, who has a life estate in the property, and for that reason, they can not maintain this action. So far as the contention is that Mrs. McEeynolds is not a cotenant with the other parties to the suit there can
The judgment is reversed and the cause remanded, in order that the cause may be proceeded with in accordance with the views herein expressed.