40 Mo. 577 | Mo. | 1867
delivered the opinion of the court.
This was a suit for partition, and asking for a sale of the premises on the ground that they were not susceptible of division without prejudice to the parties.
The petition alleged that Wendeek was tenant by the curtesy of four-fifths of the real estate, and that during his marriage he and his deceased wife executed a deed of trust on the same, by which they conveyed their . interest in the property to Bakewell as trustee to secure the payment of certain notes, described in the said deed, to Provenchere. The trustee and cestui que trust were both made parties, but no judgment was asked against them. There was an allegation that the money for which the notes were given was received by Wendeek and appropriated to himself, and a prayer that that such portion of the proceeds of sale as might be assigned and set off to Wendeek, as for his interest as tenant by the curtesy, might be applied so far as the same would extend to the payment of the notes. The court sustained a demurrer to the petition.
The statute makes provision for the partition of lands where they are held in joint tenancy, tenancy in common or coparcenary, including also estates in fee, for life or for years, tenancy by the curtesy and in dower ; and it is required that every person having any interest in such prem
It is presumed that the demurrer was decided on misapprehension of the points ruled in Alexander v. Warrance, 17 Mo. 228, which is the principal case relied on in support of the judgment of the court below. But it appears from that case that the object of the suit was to obtain partition among .the heirs of Catharine Warrance, and it was not alleged in the petition that Warrance, the defendant, had any interest in the premises ; indeed the theory of the plaintiffs was that he had not. He was, however, in possession as tenant by the curtesy; and the pleaders, in addition to the count for .partition, joined a count to eject him from the possession, thus confusing an action for partition and an action in ejectment. The court held that there was a misjoinder of parties, and that the petition was multifarious.
The plaintiffs were entitled to a trial on the merits as presented in their petition, and the judgment will be reversed and the cause remanded.
