242 Mo. 44 | Mo. | 1912
Certain defendants, the children and widow of John D. Noble (the latter dying intestate pending this suit), appealed from a decree in equitable partition. Defendants Albert and Charles Lamar and plaintiff are children of Hania Lamar, deceased, and William Lamar. Plaintiff and defendants Albert and Charles are on the same side of this controversy, hence the last two do not appeal.
Fetching a small compass about it, the controversy is this: Hiram J. Hurst died about 1880, in
The Nobles contend, among other things, that their ancestor, John D., got title in fee by said conveyance of William Lamar and that they take by inheritance from him. Contra, the Lamar children claim that nothing but a life estate passed by that deed. Such is one of the issues.
Under the facts of this record the partition deed vested no title at all in William Lamar. Such deed confers no new title. In domestic partition, the rule is that each heir takes (not by the deed, but) by inheritance from the ancestor. Such deed merely severs and adjusts the right to possession. It confers no new or additional estate. Its effect is that henceforward each heir holds his share in severalty — the title being already in him by descent cast. Such was the common law, and such- is the doctrine in this jurisdiction. Partition deeds are read in the light of the' surrounding circumstances and the purpose in view and all taking part therein take -with notice that no heir loses or gains any title. [Whitsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Starr v. Bartz, 219 Mo. 47.]
It results that an entirety of estate was not created by the partition deed, and that William did not take as survivor on the death of his wife. He was, as to that parcel, a tenant by the curtesy on his wife’s death, because of having children born alive by the marriage with Hania, and that life estate he conveyed by his deed to Noble.
It is argued, however, that he acquired an interest by the partition deed, became joint owner with his wife and thereby took as survivor on her death be-, cause of the following facts: When the domestic partition was made the judgment and mortgage debts against the land were divided into four equal parts. Thereat the judgment creditor, as I gather, loaned
If. the foregoing were the whole' case, we would affirm the judgment on the views already expressed. But it is not the whole case. As said, Hania Lamar acquired title subject to the liens of a mortgage and of certain judgments. As said, the plan of the domestic partition was to prorate the amount of the several lien debts among the heirs of Hiram J. Hurst. That
Accordingly the decree is reversed and the cause remanded with directions to enter a new decree awarding partition to the Lamar children, ordering a sale, and making the same disposition of the life estate as in the former decree, hut in addition the chancellor must compute the interest at six per cent on $242 from the date in 1904 that the mortgage was paid and adjudge payment to the Nobles of the amount of principal and interest so found, out of the proceeds of the partition sale.