15 Mo. App. 16 | Mo. Ct. App. | 1884
delivered the opinion of the court.
A writ of error is prosecuted to reverse a judgment of the circuit court, directing that certain real estate be sold for partition, confirming the sheriff’s sale of the same, and ordeiing a distribution of the proceeds.
I. The first question which we shall consider is raised by the defendants in error, and concerns the state of the record. One of the defendants, John William Brockhage, a minor, appeared, and defended by a guardian ad litem, and contested the right of the plaintiffs to have partition of the land in controversy, chiefly on the ground that he had a minor’s right of homestead therein. A trial of the issues raised by his answer and the reply which was made thereto, was had at the March term, 1881, of the circuit court. At the close of this trial, the court entered a decree declaring the rights of the parties in the land in controversy; finding
In this state of record, the question is, whether the defendant, by failing to take a second bill of exceptions, has lost the benefit of his first bill. It is settled in this state that, under the present law relating to partition, the final judgment from-which alone an appeal or writ of error can be prosecuted, is the judgment confirming the sale and
Now, the contention is that the bill of exceptions can not be considered at all, because no motion for new trial was made after final judgment. This position is not well taken. The statute provides that all motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue; and, if not, then before the end of the tex-m. Rev. Stats., sect. 3707. The-statute does not provide that motions for new trial and iix arrest of judgment shall be made within four days after final judgment. Such a rule is not to be adopted by construction in the case of proceedings like partition suits, where there are two judgments, the one interlocutory and the other final. It would xxot only -be agaixxst the language of the statute itself, but it would defeat its policy ; which is that the error, if aixy, which'the court has committed at
The question then is, whether the defendant lost the benefit of his exceptions taken at the trial, and taken to the overruling of his motions for new trial and in arrest of judgment, because he did not do the vain and useless thing of filing other motions for new trial and in arrest of judgment within four days after the rendition of final judgment confirming the sale and awarding distribution of the proceeds. We do not think that the law requires a party to do such a vain and foolish thing, in order to save a substantial right. If, upon the coming in of the report of the sale, the rendition of the judgment confirming the same, or the making by the court of any other order subsequent to the interlocutory decree for partition or sale, an objecting party desires to save exceptions, he may do so by taking another bill of exceptions. As that was not done in this case, the only matters of exception which we can notice are those contained in the bill of exceptions relating to the trial and the interlocutory decree ; and these we shall proceed to consider.
II. There is nothing in the point that before the trial the plaintiffs were allowed voluntarily to dismiss as to Donovan and Foley, the one the trustee and the other the cestui que trust in a deed of trust which had been given by Mrs. Alvord upon the property in controversy. No exception
III. It is next objected that the court erred in admitting in evidence the inventory of the estate of John Brockhage, deceased, by Mildred Brockhage, his administratrix, and also the affidavit of the administratrix thereto, and her final settlement of the estate. This objection must be overruled, because this evidence was not objected to on any specific ground at the trial. The record simply states that these matters of evidence were “objected to by defendant, objection overruled, and exceptions taken.” It is well settled that, in order to save objections to evidence so that the same can be noticed on appeal or writ of error, the specific ground of exception must be brought to the attention of the circuit court at the time. Primm v. Raboteau, 56 Mo. 407 ; Margrave v. Ausmuss, 51 Mo. 561.
IY. It is urged that the judgment is erroneous on its face, because it adjudged that the plaintiff, as successor to the widow, was entitled to an undivided half interest in the land in fee; that, the same being a homestead, the widow was only entitled to live on it during her life. There is nothing in this objection, because there was no evidence in the record from which the coijrt could have found that the property in controversy was the homestead of the widow of John Brockhage and of his minor son, John William Brockhage., this plaintiff in error. The evidence shows that Brockhage did not live upon this tract of land at the time of his death, but that he lived on another tract. We may add, not because our decision turns upon it, because it is a fact not shown by this record, that, in another proceeding between these parties for the partition of another tract of land, on which John Brockhage did live at'the time of his death (13 Mo. App. 397), this same defence of homestead was set up by this same minor, and we held it a good defence, and that there could be no partition of that tract
Y. Four grounds are urged as reasons why the judgment should have been arrested: —
1. {‘ Because it is apparent from the petition that Donovan and Foley had an interest to be affected by the proceedings, and that they were not parties to the action, the suit having been dismissed as to them.” We have already sufficiently answered this objection. The dismissal cured any allegation as to the interest of these parties, being an abandonment or waiver of that much of the petition.
2. “ Because it is nowhere stated in the petition that a final settlement of the estate of John Brockhage had been made, and until that time no partition is allowed by law.” There is nothing in this objection. It is not necessary, in order to a partition of particular lands of a decedent, that there should have been a final settlement of his estate, where there is sufficient other personal property or land to pay his debts. It nowhere appears that such was not the case here; and though the judge is to be satisfied that there is sufficient other property to pay all claims and demauds against the estate, in order that the order of distribution should take effect (Rev. Stats., sect. 8350), yet we know of no rule which requires the plaintiff to plead that such is the fact, in order to give the court jurisdiction to entertain the proceeding for such partition. In the case to which we are referred on this point (Tuppery v. Hertung, 46 Mo. 135), this fact was set up in the answer, and was not controverted, and it was held that there could be no partition, even if the parties should so stipulate, But, in this case, without any objection for variance, or without any other
3. “Because the petition prayed a cancellation of the Donovan deed, and partition of the land, which, it is urged, could not be combined in the same action, much less in the same count of the petition.” This objection, though it might have been good on demurrer, was cured by dismissing the suit as to Donovan and Foley.
4. “Because the election to take a child’s share was not made until after the re-marriagé of the widow, and it was not alleged that, in executing the written document expressing an election, the second husband joined her, and, being a married woman, she was incapable in law of making this declaration (or whatever may be its proper name), whereby the title to real estate was to be affected, without her husband joining her.” The petition, so far as it relates to this objection, reads as follows: “That subsequently, on or about the 31st day of January, 1876, the said Mildred Brockhage elected to be endowed absolutely in a share of said parcels and tracts of land equal to the share of a child; that on or about the 17th day of November, 1875, the said Mildred Brockhage was united in the bonds of matrimony to Charles S. Alvord, who is now her husband.” We know of no rule of pleading under which it can be held that such an averment in the petition is not good after judgment. If it is not averred that Alvord, the second husband of Mildred Brockhage did not join her in such an election, the contrary is not averred ; and, assuming that it was necessary for her second husband to join her in making the election we know of no rule of pleading which requires this fact to be alleged in a petition for partition, in order that the petition should be good on a motion in arrest of judgment.
VII. The only question in this case which has given us any difficulty is a point made under the defendant’s third assignment of error, that the judgment is erroneous on its face. The interlocutory décree ordering the sale for partition recites that, “ from the nature and amount of the property sought.to be divided, and the number of owners interested therein, it is apparent to the court that partition in kind can not be made of said real estate without great prejudice to the owners.” The statute provides that “ if, in any case, from the nature and amount of the property sought to be divided, and the number of owners, it shall be apparent to the court that the assignment of dower, if any, and partition thereof in kind, can not be made without great prejudice to the owners, an order of sale may be made without the appointment of commissioners.” Rev. Stats., sect. 3392. We take it that, in order to justify a sale for partition under this section, there must be some evidence tending to show that it can not be apportioned in kind to the co-tenants, without great prejudice to them. Not a particle of evidence was offered at the trial, by either party, the object of which was to show whether there could be a partition in kind, or whether there ought to be a sale for partition. The only material from which the court could have drawn a conclusion that a partition in kind could not be made without great prejudice to the owners, was that the parcel of ground of which partition was sought was but 55 feet in width by 121 feet in depth; that it had a dwelling house thereon, in which a family resided, but of the character and size of which neither the pleadings nor the evidence affords any description ; and that partition was sought between two co-tenants. It must be conceded that these materials are very meager for the basis of a'judgment
The judgment of the circuit court is affirmed.