Love v. Blauw, No. 11,512

No. 11,512 | Kan. | Feb 10, 1900

The opinion of the court was delivered by

Smith, J. :

The deed from Catherine Blauw to her minor children is attacked by the defendant in error as testamentary in character and not valid as a conveyance. The question is difficult to settle, in view of opposing authority. (Devi. Deeds, 2d ed., §§ 855a, 855b, 855c.) There is a tendency, however, in the modern decisions to uphold conveyances when not clearly repugnant to some well-defined rule of law. (Abbott v. Holway, 72 Me. 298" court="Me." date_filed="1881-06-04" href="https://app.midpage.ai/document/abbott-v-holway-4933838?utm_source=webapp" opinion_id="4933838">72 Me. 298 ; Dismukes v. Parrott, 56 Ga. 518.) We are inclined to hold that the better interpretation of the instrument under consideration is to construe it as presently passing an estate in remainder to the grantees, reserving a life-estate to the grantor, Mrs. Blauw. (Graves v. Atwood, 52 Conn. 512" court="Conn." date_filed="1885-03-27" href="https://app.midpage.ai/document/graves-v-atwood-6581825?utm_source=webapp" opinion_id="6581825">52 Conn. 512.) By the terms of the deed a present interest was conveyed to the children of Mrs. Blauw, but their enjoyment of the estate was postponed until after her death. The intention of the parties also is to be considered. Mrs. Blauw regarded it as a conveyance, which fact was attested by the partition suit brought by her, in which she treated the instrument as a deed, and the grantees coincided also in her construction of it. If the instrument is not given effect as a deed, it fails of any purpose, for it is not so witnessed as to be valid as a will.

The second question relates to the validity of the partition proceedings brought by Catherine Blauw against her children for a division of the estate. If such proceedings were authorized by law, or were merely voidable, they must be sustained so far as their effect is involved in this case. We are well convinced, however, that the proceedings were void, in that the court, under the pleadings in the cause, could not take jurisdiction of the subject-matter of the partition suit. In her petition for a division of the property she avers that she is the owner of a life-estate in the lands; that she and her husband executed a deed to her children for the same, reserving to herself a life-estate ; that the interest of each of said minors defendant is the equal undivided one-third thereof, subject to her life-estate therein. The prayer of her petition was :

. “'That so much of said land as will be found by appraisement to be of the value of the life-estate of plaintiff be set apart to plaintiff in kind, unless it should be found to be injurious to the interest of the parties, in which event that so much land as will yield the value of her life-estate be sold and the proceeds paid to her in money. That the remaining portion of said land be equally divided between said defendants.”

The defendants in that action answered by general denial, filed by their guardian ad litem. To confer jurisdiction upon a court for the partition of an estate, it is indispensable that cotenancy exist between the parties. In a case where the same building covered ground owned by both parties to the action, the supreme court of Illinois used this language :

“We are satisfied neither a court of law nor equity has jurisdiction over the case as presented by these pleadings, and accord with appellee in the proposition that no power exists to compel the fusion of these estates, to be followed by a sale and finally by a distribution of the proceeds. The idea of the plaintiff in error that he and the defendant in error hold this property jointly, is not supported by the title deeds. They are neither joint tenants, tenants in common, nor coparceners, but they severally, each for himself, own distinct parts and portions of the premises, the character of which a court of chancery has no power to change.” (McConnell v. Kibbe, 43 Ill. 18" court="Ill." date_filed="1867-01-15" href="https://app.midpage.ai/document/campbell-v-harmon-6952315?utm_source=webapp" opinion_id="6952315">43 Ill. 18. See, also, Johnson v. Moser, 72 Iowa, 523" court="Iowa" date_filed="1887-10-11" href="https://app.midpage.ai/document/johnson-v-moser-7102922?utm_source=webapp" opinion_id="7102922">72 Iowa, 523, 34 N. W. 314.)

In the case of Smith v. Runnels, 97 Iowa, 55" court="Iowa" date_filed="1896-01-28" href="https://app.midpage.ai/document/smith-v-runnels-7107107?utm_source=webapp" opinion_id="7107107">97 Iowa, 55, 65 N. W. 1002, the plaintiff was the owner of a life-estate in real property acquired under a will. She brought an action of partition, alleging that the defendants (some thirty-two in number) were collateral heirs to the property, entitled to what remained in the real estate after plaintiff’s life-estate had terminated. The court said:

“Plaintiff having but a life-estate in the land, the next question presented is, What authority has a court of equity to order its sale? It is evident that these parties are not joint owners or tenants in common of the same real estate, and it is equally clear that, under our statute, partition can be had only when the land is so owned. As said in the case of Johnson v. Moser, 72 Iowa, 523" court="Iowa" date_filed="1887-10-11" href="https://app.midpage.ai/document/johnson-v-moser-7102922?utm_source=webapp" opinion_id="7102922">72 Iowa, 523, 34 N. W. 314, ‘ There is no necessity to have, nor, in the nature of things, can there be, partition of real estate owned in severalty.’ See, also, Clark v. Richardson, 32 Iowa, 399" court="Iowa" date_filed="1871-10-06" href="https://app.midpage.ai/document/clark-v-richardson-7095019?utm_source=webapp" opinion_id="7095019">32 Iowa, 399, and Freeman Co-ten., section 431. Under the will, plaintiff has the sole use and benefit of the land during her natural life. The defendants have no right to its possession or use until the death of the plaintiff. Whether the plaintiff may make a voluntary disposition of her life-estate, is a question we need not determine ; for, if she has this right, she needs no decree of a court of chancery to assist her in the exercise of the power.” (See, also, Seibel and Al. v. Rapp and Als., 85 Va. 28, 6 S. E. 478.)

In Stansbury v. Inglehart, 19 Wash. Law R. (D. C.) 594, it was held that a court of equity not only could not assume jurisdiction to decree partition of land between one having a life-estate and the remainder-man, but that the consent of the remainder-man, where he is an infant, or hi§ ratification, could not give validity to such a decree.

It will be noticed that the district court in this case divested the minors of a large portion of an estate which they owned in fee simple, subject only to the life-estate of their mother, and gave it to the latter absolutely, in fee, and without condition. The court made a finding that the infants were owners in fee simple, and that Catherine Blauw had simply a life-estate ; and just how the court proceeded to convert this life-estate into a greater one we do not understand. We cannot treat the judgment in that case as voidable merely and not subject to collateral attack. We regard, it as absolutely void. Having a life-interest only,- and claiming no greater estate in her petition, we think the court was powerless to adjudicate that she take the fee. She had no such community of interest with her children as to authorize partition.

The judgment of the court of appeals will be reversed and the judgment of the district court affirmed.