97 Mo. 628 | Mo. | 1888
This is an action for partition and sale of real estate. The amended petition on which this case was tried is substantially as follows: That plaintiffs are husband and wife; that on the ninth day of October, 1883, said plaintiff George C. Holloway, husband,
The-other defendants did not answer. The plaintiff replied to the answer of John M. Holloway denying all its allegations. On the twentieth day of July, 1886, the case coming on for trial, the court found the issues for the plaintiff, made a finding of the facts substantially as set out in the petition, and that said J. M. Holloway is justly indebted to the said S. A. G. Holloway in the sum of $254.50, being one-half of. the sum paid by her for interest and taxes as stated in the petition; “that the rental value of the real estate mentioned in plaintiff’s petition for year commencing March 1, 1885, and ending March 1, 1886, was $1,005 ; that the rental value of said r,eal estate from March 1, 1886, to March 1, 1887, is $825; that said John M. Holloway has held possession of said real estate since March 1, 1885, and has refused to allow said plaintiffs or T. P. Holloway to enter and hold or enjoy the same or any portion thereof, and still holds the. same and is receiving all profits of same, although demand has been made to jointly occupy same with him, after he had conveyed to said S. A. G. Holloway the undivided one-half thereof by warranty deed ; that said John M. Holloway is justly indebted to said S. A. G. Holloway in the sum of $915 for one-half of the rent due for said two years ; that said John M. Holloway is justly indebted ,to said S. A. G. Holloway on account of interest, taxes and rents as aforesaid in the sum of $1,169.50 ; that of said last sum there is due from said John M. Holloway to said S. A. G. Holloway for rent of 1886, and up to March, 1887, the sum of $412.50; that said John M. Holloway is insolvent ; that said George W. Holloway, at the commencement of this suit, had no interest in any of the real estate herein mentioned, nor has he since had any
The court then entered the following interlocutory decree or order: “It is therefore considered, adjudged and decreed by the court, that all the real estate heretofore mentioned herein be sold at public sale, one-third for cash, one-third due in one year and the remainder due in two years, with both deferred payments drawing interest at eight per cent, per annum, except the twenty acres heretofore described, and a deed made therefor, subject to the lien and deed of trust of said Missouri Trust Company, or the holder of said note and mortgage. • It is further ordered, that out of the amount due said John M. Holloway on proceeds of the sale of his undivided half interest in said land, that there be first paid to said- Thomas P. Holloway on his mortgage or deed of trust aforesaid, the sum of $2,384, with interest thereon from November 1, 1883, at the rate of 7-f-per cent, per annum; that out of the remainder of said John M. Holloway’s interest in the proceeds arising from the sale of his half interest in the land aforesaid, that there be paid to said S. A. Gr. Holloway the sum of $1,169.50 ; that of said sum of $1,169.50, to-wit, $412.50 be and the same is hereby declared a special lien on all the crops raised on said premises for the year commencing March 1, 1886, and ending March 1, 1887, and that special execution issue therefor, It is further ordered that all costs and expenses be first paid before any other sums are paid.”
“The statutory mode of partition, found in our revised laws, has never been supposed to divest courts of chancery of their jurisdiction. Though law and equity are now blended, yet the cases in which chancery formerly had jurisdiction are cognizable in our courts, according to the mode of procedure now in use.” Spitts v. Wells, 18 Mo. 468. The circuit court is vested with all the jurisdiction and power that a court of chancery ever had in partition suits. The mode of procedure in the exercise of that jurisdiction, as well as the mode to be pursued to obtain a review of its action by an appellate court, is, however, regulated by statute. As incident to the exercise of its chancery jurisdiction to make partition of real estate, in order to do complete justice and avoid a multiplicity of suits, it will take an account of the mesne rents and profits in perception by one tenant in common to the exclusion of the other, and of money paid to remove an incumbrance on the common property by one of the tenants. Freeman on Co-Ten. & Par., [ 2 Ed.] secs. 425, 512; Story on Eq. Jur., secs. 655, 466; Obert v. Obert, 2 Stockton, 98; Scantlin v. Allison, 32
And where, as in this case, one co-tenant is in receipt of all the rents and profits, and in the exclusive use and enjoyment of the whole premises, refusing to let his co-tenant in, and such ousted co-tenant has paid money to relieve the common property of incumbrances in whole or in part, the court will declare a charge in favor of such ousted co-tenant for the amount of his share of such rents and profits, and for the amount such ousting co-tenant ought to have contributed in discharge or reduction of the incumbrance on the share of such tenant in the common property, to be paid out of the proceeds of the sale of the property in partition, before division thereof is made between the co-tenants according to their respective rights and interests in the premises. Goodenow v. Ewer, 16 Cal. 461; Scantlin v. Allison, supra; Bowles v. Bowles, supra; Freeman on Co-Ten., sec. 512; Story on Eq. Jur. 655. “ When a court of equity once acquires jurisdiction it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice.” Real Estate Savings Inst. v. Collonious, 63 Mo. 290, and cases cited.
This suit was begun October 13, 1885. The petition alleges that the rental value of the premises for the year 1885 was one thousand dollars. The rent accruing for that year would have been earned on the first of March, 1886 ; the allegation is equivalent to an averment that the annual rents and profits of the premises is one thousand dollars, and the substance of the remainder of the averment is that the defendant John M. Holloway is in the exclusive reception of such rents and profits and refuses to allow plaintiff any part thereof. This allegation is not so certain and definite as it might have been, “ that the defendant had excluded the plaintiffs from the joint
On the pleadings, the court was authorized to find (the evidence warranting it) the value of the rents and profits (13 Grratt. 653 ), and charge them- upon defendant’s share of the proceeds of the sale of the premises, from the time of his ouster of his co-tenant until the day of the sale. Within these limits, the defendant would have no right to complain of the interlocutory finding and order. As to so much of it as declares the sum of 8412.50' a special lien on all the crops raised on said premises for the year commencing March 1, 1886, and ending March 1, 1887, and ordering that a special execution issue therefor, there is no judgment to support such an execution, and we know of no law authorizing the court to declare such' a lien. That part of the order is a nullity, and cannot have the effect of converting an otherwise interlocutory order into a final judgment, from which an appeal would lie.
While the appeal in this case must be dismissed because prematurely taken, a brief notice of the remaining points urged by counsel against the proceedings herein may obviate the necessity of another review upon final judgment. It is urged that the order of sale and partition herein shows error on its face in view of the fact found in the decree, “that said John Holloway has held possession of said real estate since March 1, 1885, and has refused to allow said plaintiffs or T. P. Holloway to enter and hold or enjoy the same or any
Now, while the answer does deny,the tenancy in common, the defendant does not claim to be holding the premises adversely to the plaintiff, does not disclose any title in himself to the whole premises, but does disclose a legal title by warranty deed from himself in the plaintiff to an undivided half, and then attempts to show that a third person has acquired a right or title by which such legal title might be defeated and fails to support by any evidence the averment that such third person has any such right or title. If any evidence had been introduced to support such right, the plaintiffs would not thereby have been necessarily driven to their action of ejectment. The statute makes provision for trying in the action for partition the adverse claims of parties to the same undivided interest in real estate. R. S., sec. 3355. It is only when the defendant is in adverse possession of the whole premises, claiming title thereto, adversely to one who claims to be his co-tenant, that such co-tenant can be driven to his action of ejectment, but apart from this adverse possession alone, without show of any title to the plaintiffs’ undivided interest therein, and without any evidence casting a doubt upon the plaintiffs’ title thereto, could not compel a resort to ejectment. Howey v. Goings, 13 Ill. 95; Sedgwick & Wait on Trial of Title to Land, 167;
Independent of all this, the defendant in his answer discloses a fact, which would authorize the exercise of jurisdiction in this case, in that the right or title charged to be in some other person than the plaintiff is not on its face a legal title but an equitable one, to establish which it might be necessary to invoke the •powers of a court of equity ; and his counsel furnish an additional argument, if any were needed, in favor of such jurisdiction in this case, in the attack they make upon the finding in favor of Mrs. Holloway for the amount of the rents “and profits, contending that her estate in the premises being an ordinary legal one, that the husband alone is entitled to recover the rents and profits thereof, such being the rule in ejectment, as is contended under the authorities cited. Conceding that such would be the rule in an action at law, it does not follow that in equity her right to rents and profits from her real estate, made her separate estate by statute, would not be protected and secured to her, the same as if it were her technical separate estate, and that they would not be so protected in an action at law would of itself afford good ground for the interposition of equitable jurisdiction.
That the cause came on for trial and was heard in its regular order under the rules of the court in which it was at issue at a time when counsel, owing to a different rule in an adjoining circuit, did not expect it to come on, in consequence of which they were not present at the trial, in the absence of misrepresentations or bad faith on the part of counsel on the other side, would afford no ground for a new trial. .
' The appeal herein is dismissed, and the cause stricken from the docket.