| Mo. | Mar 15, 1870
delivered the opinion of the court.
The plaintiffs filed their petition in the nature of a bill in equity for the partition of an equitable estate in certain premises therein described. It is alleged in the petition that the defendant, Frederick Robertson, on the 14th day of December, 1855, conveyed said premises to the defendant, Ed. B. Farley, for the sole and exclusive use of the plaintiff, Mrs-. Isabella Reed, then Isabella Robertson, and of the defendant, Mrs. Elizabeth Robertson, the wife of the grantor in the deed; the said Isabella being his daughter by a former wife. It is also alleged that Mrs. Reed was, at the time the deed was made, a minor; that she has since come of age and intermarried with Wellington Reed, her present husband, who is joined in the action; that she is entitled to-an equitable estate in said premises of one undivided half, and that Mrs. Robertson is entitled to the other half, the defendant, Farley, holding the legal title.
Farley answered, admitting the trust, but disclaiming any interest in the property, and asked to be protected against costs. The other defendants answered, admitting the execution of the deed conveying the property to Farley in trust, but denied that Mrs. Reed was a party thereto ; and allege that the “Isabella” mentioned therein as the child of Robertson, the grantor, -is- a “ totally different person from the Isabella Reed mentioned in the
The pleadings make but one issue of fact, namely: whether the plaintiff, Mrs. Reed, was named as one of the beneficiaries in Robertson’s trust deed to Farley. The beneficiaries were therein described thus : “Elizabeth Robertson, my wife, and my child, Isabella.” Mrs. Reed was then about eleven years of age, and was known and called by the name of Belle, or Isabella. At the same' time she had a half-sister — her father’s daughter by •the present Mrs. Robertson — who was also called Isabella, as the testimony intimates, her full name being Isabella Chloe Elizabeth Robertson. Hence .the supposed uncertainty as to the child mentioned in the deed of trust. At the time the deed was executed, the second Isabella was an-'infant of less than two years of age. Robertson, of course, knew which child he-intended to make the recipient of this particular bounty. There is no accounting for his subsequent conduct as connected with this matter, except upon the theory that the deed was made for the benefit of his then wife and his daughter, the present Mrs. Reed. The court below found that she was intended as one of the beneficiaries, and we have no disposition to disturb that finding. We have carefully examined all the testimony, and are satisfied with the result; but we do not feel called upon to go into any detailed analysis and sifting of the evidence in order to sustain our view of its effect.
It is claimed, however, that the court admitted incompetent proofs; that a letter of Robertson’s was read in evidence improperly ; and' that Mrs. Reed was improperly re-examined for the purpose of contradicting some of the former’s statements. A
Again, it is urged that the pleadings and evidence show a defect of parties ; that Isabella Chloe Elizabeth Robertson ought to have been joined in the defense. It is true that she is alleged in the answer to have been the beneficiary named in the deed of trust; but that allegation is negatived by the proof and the finding of the court. The unsustained and disproved averments of an answer can not create a defect of parties. The answer alleged a good defense, but it broke down.
The defendants, moreover, make the point that the petition contains no averment that the parties to the suit held the land jointly, or as tenants in conamon. No objection was taken to the sufficiency of the petition in the court below, and the objection taken here for the first time comes too late. But it is without force. This is not a proceeding for the division of a legal estate. It is a suit for the partition of equitable interests in real property, and the averments of the petition are' addressed to the equities of the case.. The ^averment that each held an undivided half of the equitable estate is sufficient. The legal title and right of possession were in Earley, the trustee, and for that reason Mrs. Reed could not sue in ejectment. She therefore resorted to her suit in equity for a partition,.subject to the terms of the deed of trust. It is not averred in the answer, nor
The .judgment will be affirmed.