Wainwright v. Rowland

25 Mo. 53 | Mo. | 1857

RylaND, . Judge,

delivered the opinion of the court.

This was a suit for partition of a certain lot of ground lying in block No. 39 in the city of St. Louis, being the whole of the north-east quarter of said block 39, except twenty-three feet front on Main street, by sixty-two feet two inches on Almond street in depth. The plaintiff says he is owner in fee of one equal undivided half of said lot of ground. He alleges that he had erected a house upon the lot of ground held in common with consent of his co-tenant, and by his own means. He asks that this part of the lot on which he had built his house may be assigned to him without charging him with the value of the improvement, or that he may be allowed for the improvement so made by him. Upon the trial, it appeared that the plaintiff’s title was derived under a decree of the Circuit Court of St. Louis county, sitting as a court of chancery, declaring him entitled to one undivided half of the lot upon a bill for a specific performance, in which bill the complainant (the present plaintiff) set forth the alleged fact as to his building of this very house, with his own means, and by his then co-tenant’s consent. This claim was disregarded by the court in this present case, and the commissioners reported against a division in specie, and for a sale, and subdivided the lots by streets and alleys for the pui’pose of the sale. The plaintiff objected to this course, and brings the case here by writ of error.

The plaintiff showed no right to demand any thing for the building by him erected on the lot in question; no right to have that portion on which the building stood allotted to him by the commissioners. His title is derived under a decree in chancery. This building and the possession of it by plaintiff, and the averments about its being made and erected at the costs of the plaintiff individually, were all matters alleged in the bill in chancery; yet the decree only declares him entitled to an equal undivided half of the lot of ground; does not give him any claim to demand the particular price or part covered by his building, or to demand pay or remuneration for his building. He proved title to an undivided half of the lot — title, too, declared by a decree in chancery after the building had been erected. There is not the slightest ground for his demand of any particular portion of the lot to be partitioned off to him, or to be allowed for any building put on it by him.

The commissioners reported that a sale was necessary, the lot being incapable of partition in specie without injury to the owners; and in their judgment the lot of ground would bring more by being laid off by streets and alleys into lots. No doubt these commissioners were better qualified to decide upon this measure than the courts, and, having made their report, we shall not reverse the judgment below approving and confirming it.

In looking over the whole record of the proceedings below, we find nothing done of which the plaintiff has any right to complain. Let the judgment therefore be affirmed; the other judges concurring.