*1 George. George Waller, Appellant, H. (2d) v. Madeline 16 S. W. 63. One,
Division March
James R. Hull appellant. *3 respondent. A. D. Gresham Riley and Terrence *4 ELLISON, C. Suit in equity to enforce an oral contract to con- vey a farm 160 of acres in County, Platte partition and for of another tract of 120 in acres county the sanie plaintiff’s left the in- —both father, testate Fountain L. Waller. The defendant, answer of the a daughter, general included a denial, plea the of Statute of Frauds and appropriate allegations affirmative coupled prayer with a partition of the entire acres. The circuit court found for the defendant denying specific performance ordering partition. Commissioners were appointed, who awarded the acres to the daughter and the- 160 acres to charged the son with payment of This shares. distributive the two equalize daughter to the $750 who appointed, were commissioners and new set aside report was Thereupon the court kind. in divided not be land could reported the made. sale, which partition ordered thereafter, months March, Over two in was tried The case filed, of commissioners report second June, 1925, when the in evi- might offer reopened so the case plaintiff asked to had improvements he value showing the character dence ac- taken into might be these acres, end that put on the was, refused, as request was making partition. The count later, Still $3000. was worth also, prove improvements his offer trial, filed plaintiff after the September, six months 1925, some improvements were aforesaid alleging petition a second amended be made allowance therefor $2905, praying of the value of This specific performance denied. partition proceedings in the if was struck out the court. (1) in plaintiff appeals, complaining court erred: that the (2) refusing specific performance; setting aside* first to decree report commissioners, awarding the 160 acres charged (3) payment respondent; failing $750 with put to allow credit he had for the on the 160 acres, and in refusing hear as to the value thereof.
As will be foregoing, surmised from the practically 'all evi- specific dence was performance case, directed to the branch of the had to do with making and terms contract and the performance by the appellant family. thereof pleaded his As contract was as follows: “Plaintiff further year states that plaintiff and his
father, said Waller, Fountain L. agreement entered into an oral whereby said Fountain promised L. agreed Waller if the plaintiff would him, let the said Fountain L. Waller, live with him as long as live, he should and make his home with plaintiff, give him such care and attention might need, as he and also take care of a horse which the said Fountain L. Waller owned, he, then plaintiff said should have the use income from the above described 160 acre tract land, and at the death of the said Foun- tain Waller, L. he, this plaintiff, would become the owner and take the title to said 160-acre tract.” The 160-acre farm was family homestead. The 120-acre tract was a detached body prairie land grass all in except a few acres. The appellant lived on place the home with father, intestate, his and when married in 1899 brought By wife there. 1912 they had four children, and the appellant’s family whole of six lived with
the intestate, who was nearly eighty-seven years old when he died in June, 1924. He had been a widower many years. paid the appellant testimony is 1912 some of the Prior to testimony that other There is farm. 160-acre rent on deceased that, about may the fact Whatever together. land they farmed the pure-bred interested became 1912 the deceased appears is sides both bought and some. cattle shorthorn arrange- made deceased that time the
that about farming the home charge of took ment which there) and the live (though deceased continued 160 acres 120-acres. put over on the cattle were involved thereafter, alleged contract years Two was' years contract before the this made. was ten case was This in 1924. brought question by Fountain Waller into the death of wife, Mrs. appellant’s testimony concerning it comes from the direct Mrs. Perry and Waller, daughters, Lillian Bernice and his two Mrs. and Liepard. present Louise All them heard testified were agreement. getting family Mrs. Waller said: wanted “We to build—the big, says, bigger; so we wanted Mr. Waller to make the house go ‘Just place ahead. yours, you This is and build to on what want ” it.’ After repetitions objections some by opposing counsel, she continued: “Well is all I can Mr. remember at that time. Waller always has said he to live with us—all he there wanted awas us, home with and we was take care of him. He ... just wanted us, to live with family, be one of the and be taken care of when he sick, cooking everything have his done . . . He wanted us to feed his horse—take care of his horse — and furnish food, clothes, take care room, of'his and his ’’ do his washing, and take care of him when he was sick.
Further on in her testimony this witness stated she had heard the deceased talk making about a will and that he said he wanted to avoid trouble —he going to make a will and that he wanted to will (who Edward we understand appellant’s was one children) forty acres of the 120-acre tract. She also testified she had heard the deceased say to his old friends, “Well, place George’s, he just can do pleases he with it.” The daughter, Mrs. Perry, Bernice gave her recollection of the con- versation. She years was nine old at the time. “Well, She said: Daddy wanted to build an addition to the house because thought we needed room, inore and he Grandpa asked it; about and he told go him to ahead and build what thought was necessary because years later place would turn the over him, provided he took care of him and his horse during his place lifetime—the would be his at his death.” The other daughter, Mrs. Liepard, years was eleven old in 1914 when the jnade. contract Her testimony, some, condensed *6 more father) “thought needed we her (the appellant, “He” was: grand- and house; to addition build wanted to room, and he be his would it place fix the ahead, and go him to told father —that place have ; that he could . . . death day upon his some — from proceeds have the him, and care of take there, and to live then his. . place was death life, and his during at place his during life, during all his grandfather care of take My father was to for him said Grandfather . . . him. sickness, feed and to . . his . it was that to house; on to the go ahead and build to proceeds get the was to be—he that it was upon his death. And to him, take care of he would take during his lifetime if place from supply during and sickness, horse, of him and take care care of his food for him.” his alleged con- on faith was that enlarge dwelling house proceeded during year to
tract he the same expense. work building his own rooms at two additional Eader, builder, and testified that a was done John contractor who shortly job he deceased after commenced said to hint: thought George room,
“He said wanted a more that he that little go it; going and he told him that to build he wasn’t to build farm; going put it—he wasn’t to no more on that he had turned George, gave George’s it over it him, to it to and was now-—is way he told me.” But way: put little later this witness it this said it “He was—‘It is George’s,’ said, my he ‘at death. I have turned all it him;’ says, over to ‘I got nothing he. have more do with to ” place.’ And again “Q. then repeat said: he language Just his he —what said in that A. Well, says, connection. ‘I have turned this all over George, charge and he has whole business—of this whole place ‘hissen,’ now. It him, belongs any- I haven’t thing more to do with it. building I am not I nothing here. ain’t ” having this work done.’ James A. Hulett and Ad. carpenters Eader were who worked on job. the same The former testified the deceased said the farm whs George’s (the appellant’s) (the deceased) didn’t-have anything to work; do with the George “it was having built, George fix could way he wanted it—it was his.” The latter witness stated the deceased told him he had turned the farm over to George George having the work on the done now and paying for building work. This same witness said later in his testimony: “Well, he said that the place home George’s, and that place this other going give Madeline, —he daughter.” daughter This was the respondent, and the “other place” referred to was the 120 acres. neighbor Losey, David witness Another away, out of Losey had been Mr. deceased. friend of old 1915 noticed and on his.return for several years, neighborhood, deceased remarked to the He house. addition following conversa- dwelling and tlie improvement of observed his “ said, anything.’ He ‘I haven’t built said, ‘No,’ he occurred: tion George, farm over ‘I turned says, He ‘George that.’ built *7 and quite large, family getting as his have more room and he had to myself.’ family, and for him and his enough room wasn’t there George home to the home over said, ‘I have turned And he —the taking place for care home my death, he is have the place. to At stock—whatever little driving horse, what other my and me ” Further my death.’ place might be—is on the
little there to be —at wanted said he quoted as follows: “Hie this the deceased witness only heir of George place, as he was the male to have the home kept Waller in the generation; the home farm Waller that he wanted ’’ name. a witness, Perry, spring said Another Herb walking year died, little over before Fountain Waller the two were place about the The cherry home came to some trees. witness “ George you stated enough, the deceased said to him: ‘If don’t have may you let spoke up George’s, some He that it was cherries.’ wasn’t his.”
The Noah witness Wills testified to another incident which oc curred, apparently, bought soon after the had intestate the shorthorn cattle in 1912 and before the The contract was made latter said thought to “He buy cows, former: he a few would put grass his on out he prairie, George on the said —he turned the farm there George, thought over to at he he would tend to that out there himself.” shows, As the context wit this ness meant the home farm had George, been turned over to shorthorn kept cattle were to be Continuing, acres. reported witness the conversation as follows: “I said getting he was go awful old thoroughbred to in the in George business. Ain’t you? terested with said, And ‘No, going he he is to take the home George was—I didn’t know George it, whether or liked himself’— not. I if George asked registered like stuff, and he said didn’t he think he did. just And he said he turned place the other over to George. say He gave didn’t he it to him. turned it He over to him - to George farm. farmed it different than he what did.” T. B. Duncan was an uncle of the appellant’s wife. He he said had moved from County Platte to Vernon County and in 1921 re- turned after seven years’ absence. morning One he was at Foun- tain Waller’s home and commented on the addition to the dwelling house. following occurred: (the “Then he deceased) proceeded he know, that know, did or ought that I to thought lieme to tell my first I That didn’t. George, but give had done says, ‘I have . He George. . . given it to had that he intimation I him told land, and 160 acres George farm to give this —this He said . . on it’ build build all he wanted it over turned had that he attention, and old, and needed getting George that he and between agreement George; that there this lifetime in his his horse of him care George was to take ’’ farm. wife, Waller, appellant’s case Mrs. Lillian stage At this after seven- to the stand witness, recalled first had been the who any- asked if recalled she testified, and had teen other witnesses appellant and between the conversation thing said else that.was following are already told. what had father, her beside she her answers: propounded counsel questions ‘‘ . all George it was Well, saying that I remember The Witness: right contract. with him—the you
:!‘Q. else, remember that else, anything if And what morning? Well, A. you Mr. Waller than what stated said it; place, just pleased told him with that it and do take would be his at death.
“Q. is, Yes, That Waller A. father. Mr. said that? his “Q. If you say think you anything you of that think else didn’t morning you anything recall else that Mr. Waller said he —do George Well, wanted him? to do for A. he wanted him to care take of lifetime, him in his and of take care his horse.
“Q. you anything else, Do think of Well, Mrs. Waller? A. he said he wanted us, to live there with and have that for his home.
“Q. Yes. A. And George of him, all, take care me cook for him. “Q. got When he through making with statements, those what ? George say did to him A. Well, he he said would that. do He said right; was all he would do that. “ Q- you Do think of anything you else that have left out of the conversation, you do, Mrs. If why, just Waller?. tell court about
it? A. Well, I don’t I believe do.” The fairly foregoing well summarizes appellant the evidence for on the making and terms of the contract. It by proof followed that plaintiff thereafter exclusively managed farm, the home rent free, and improvements made thereon, including the two-room addi- tion to the house mentioned; hereinbefore dug that a cistern, he built a. garage, recovered the house barn, painted papered the house, painted the other buildings, fences, put built out an orchard, and cut and sold $800 worth of logs, walnut all with the knowledge and consent of the deceased. A number of witnesses were in the trans- figured or tasks at various these who worked
produced pay received them that by shown and it was involved actions improve- smaller that some shown It was also appellant. from the these were 120-acre constructed ments were deceased. paid frail deceased that the was. In addition to this there compelled and that he every in a while once spells had sick required things of these result teeth extracted. As to have his having administered way medicines especial attention compelled hospital go special prepared. In 1915 he was foods where, operation. During all this he had an time Joseph in St. family were attentive to the intestate and appellant and his expressed with him. their treatment satisfaction appellant occupied respondent evidence for the The Waller under the home farm from 1914 until the death of Fountain agreement pay- the farm that he was to have the use of without provide rent, ment and it was contended the contract did not the title in- appellant was to be vested at death of the any in- time, might testate or at other than as he otherwise take heritance. George. respondent husband,
The first witness for was her Claude He said that in spring appellant of 1918 the wife, talked to his respondent, presence, and told had his her a contract with whereby the intestate get he was to the use of the 160-acre farm long lived, as the taking him, taking intestate care care of horse, keeping up paying taxes. appellant made the same presence again statement witness’s After Fountain Waller died the matter settling the estate came up. respondent suggested to the thought that she ought both to administer and appellant agreed. She then asked him if Fountain Waller had a will left answered that he not, had saying, just “We will up divide this between us equally.” A little later *9 appellant the suggested respondent to the and the witness, her husband, thought that he the 120-acre tract would sell for as much as the farm, 160-acre give and he offered to respondent the a deed for the 120 if acres give she would him a deed for the 160 respondent acres. The Shortly refused. after that the appellant suggested respondent to the they that sell both farms and settle the estate way. that She consented, nothing but was ever done about it. respondent substantially corroborated the testimony of her husband on these matters. She also testified that after the intestate bought the shorthorn cattle in her brother, appellant, the told her he didn’t think the deceased bought should have the cattle
583 the that acres, and upon the cattle keep the going to he was that during place the home charge of could him he told had deceased appellant 1914 the After any rent. paying without life former’s the occupy for him was arrangement the said again and her talked to rent, ex- paying without it off of could he what make the home he had see deceased, and care take towas cept that he home. comfortable ad- in course was estate when the testified She further everything. would divide they her appellant told the ministration wasn’t appellant but the appraised, land had the they equally and than the for more appraised was 160 acres satisfied because he time equal value. At that thought they were of acres, when he conveying him the deeds, exchange she they suggested that proposed refused, When she 120 acres. her the acres he to consented; but when it, sell and she up and they put the land 160 acres on the bid that he would appellant her told husband appellant backed out. it seemed the day him City asked in one
Finally Platte appellant saw the she di- making method of as if had come a decision ever agree. not guessed could appellant vision and told her afternoon, declined proposed they She and he have a conference that business, would her pressing said he meet because of other but next morning. morning the next she When she came town served with summons in the suit.
In original petition addition to in the case was introduced this in petition pleaded pro- In evidence. the contract and relied oii specified appellant vided that if the should render the various services plaintiff 160-acre farm home “and re- should be his should ceive portion the same as and Ms share and estate of the real (Italics said ours.) Among Fountain L. Waller.” duties im- posed appellant by pleaded, on the at- contract thus one was to tend to the washing, keep clothing proper intestate’s con- dition; and it pleaded performance further that in of the con- tract paid all taxes agree- the 160-acre after the ment was entered pleaded original peti- contract into.. tion differed from the one set out second amended particulars just mentioned. It was further shown that when estate of Fountain Waller administered probate court both the farm and the 160-aere 120-acre farm were inventoried under part estate, oath aas of his inventory reciting that made and the re- spondent and appraisers three designated therein. Thereafter appraised estate for tax, state inheritance the value of the 160 being acres $14,400 fixed at at value acres $10,000, and the value of the distributive share of each of two *10 to be shown respondent appellant the is,
heirs —that —was shortly shown that also It was estate. the whole equal one-half of trust on gave a deed appellant intestate the of the after the death by secure the deceased left all lands interest his undivided $11,000. for the sum note days during the last that ivas this there In addition to bought a mattress appellant Waller Fountain of the illness of there- gave checks some the former’s use for and some bed clothes Waller,” by H. and that the checks G. signed, for L. Waller “F. shown bank. It was also at the turned down were afterwards who pay a hired man father to appellant gave a check on his appellant while the during illness of deceased worked the last him. There was also evidence for several busy taking care of years part of Waller’s life taxes on the latter Fountain toward by by appellant, him paid farm were instead 160-acre expenditures scattering with there was evidence other connected paid operations part the farm on acres were whole or account; out of Fountain Waller’s bank and that some shoes for appellant’s family paid by Waller; were Fountain and that paid laundry mending. some of his work and In addition to neighbors this some testified that kept up very good 160-aere home had not been shape by the appellant. go We do need this not into class of testiniony ex- tensively.
Finally in “appellant, rebuttal George Waller, was called to Up the stand in his own behalf. point to that in the trial he had not been offered as a witness because of his disqualification under Section Revised Statutes 1919, party other to the contract and cause of action at being issue and on trial dead. He was asked if he had had the conversation with respondent and her husband George Claude had testified, which.both in which he told them he was to have the use of place home payment without of rent in return for services to be by rendered him to his father. It is hard to tell what meant his answer question. to this He ‘‘I said: never did while Pa living. I did after he died.” This appears on its face to be an admission that he told respondent and her husband he only ivas to have the u-seof place; but later in his testimony says he told them in this conversation that he get was to place home at Fountain Waller’s death. The appellant also admitted on the stand that he had made an offer to the respondent to let her have if acres she would let him have place, 160-home explained but he he meant merely as an offer in compromise or dispute. settlement of their On cross-examination he was asked why he had stated in original petition that under the contract get he was to the 160 acres *11 petition amended second the in whereas estate, as share one- 160 acres the sued for was tried the ease on which was: “When question The next well. as acres in half interest the right justice that?” the mind as to you change your did lawyers.” I to the talked replied, “Since cited authorities all the attempt even to refer I. We shall not equity courts governing rules parties the in their briefs. conveyance for the contracts of oral enforcement Frauds, in cases such Statute of against the of laud as Bohannan, length in Walker v. this, at are restated as case) (quoting from that 1028, and 1024, 147 S. W. 119, 136, 243 Mo. TIoehn 37, 2), S. W. (Mo., Div. v. Freeman Snuffer by these 954, 958. Measured 297 W. (Mo., 1), Div. S. v. ECoehn for, opinion, affirmed, in our judgment should think rules we Frauds at which the Statute of typically illustrates evils this ease again length, at our going aimed. Without over the evidence was testimony up by saying ap may be summed conclusions that which pellant producing degree falls short of of conviction pleaded proven, law reqxxires cases, either that contract was such definitely clearly shown, or terms thereof were or performance solely alleged contract acts of were referable to the sued on.
The direct evidence appellant’s as to the contract came from the daughters, years wife and his two one of nine whom was old other when it testimony eleven is to have been made. Their given years attempt eleven afterwards. It was an to narrate what family at a said testimony conference. Mrs. Waller’s as a whole is not clear and convincingly prove does not arrangement was contractual. And as daughters, of the two without discounting in credibility, the least their clear hang it not that to a real estate title on the slender thread testimony given by two girls attempting to state an oral hearing contract made their at family years council eleven they before when children, were would disregard be to the Statute of altogether? Frauds however For sincere may been, practical as a very matter we know it is if doubtful they would be give able to language exact or the exact meaning of what said. We do not overlook the fact that there was other tending evidence to corroborate them, but this evidence being likewise is far from clear and consistent. More thaix half of these witnesses stated the old man said the farm George’s xvas at the time of the conversation; e., i. by the contract made in 1914 gave intestate George farm time&emdash;not at that that George get death, at the intestate’s pleads. im- consider some we matter that phase of the is another There gentleman said the old Rader testified Ad.
portance. witness going 'George’s that he was place was the home to him that respondent. daughter Madeline, to his give 120-acre farm he wanted declared Losey said the intestate And witness David only male heir and he place as was George the home to have Thus, by Waller name. kept two farm wanted the home had in mind intestate it was shown the appellant’s own witnesses estate, share of get as his the home that the should original petition pleaded the brought so and when this suit *12 in which contract; amended was filed but a first thereafter contract and sought farm under the apx>ellant obtain home to an heir. There to half in 120-acre farm as is claim a interest question as enough record raise our minds to whether to a contract, ultimate, legal sense, the real if there one in an was not appellant pleaded place. as the it in the first (cid:127) again ap- respondent Then we have the that pellant get (not stated was to the use of the home farm the fee title) tailing father; and, death, care of after the father’s that equal the estate was to be divided in two In this, shares. addition to appellant admitted from the witness chair he had offered to respondent release 120-acre farm to if she would release the 160-acre him; farm to by and while way he said this of com- promise, respondent and her suggestion husband insisted the a offered as effecting equal means of division. Taking testimony together all the we do say not feel able to alleged contract proven beyond has been Speak doubt. reasonable ing high degree of the proof character, exacted cases of this it was said in Bohannan, Walker v. supra, 243 140, Mo. l. 147 S. W. c. l. c. 1030: “This standard should not be lowered. specific Real per- cases of formance of contracts of this kind have few been between, far justly so. Title to real just estate should remain where the death of the it, owner left unless the conduct the owner has been such prick to severely the conscience of the chancellor. When death has sealed lips of the one who facts, knows vague, loose proven indefinite statements, or statement, change should not the course of property descent.” assignment setting
II. The trial court next is erred in report aside partition in appoint first commissioners ing new commissioners. It will first be remembered the set of commissionersawarded the 120 acres to the re spondent and the 160-acre home charged payment respondent $750 with the to ground respondent’s One equalize distributive shares. the two the commissioners had report no to set aside motion
587 rights and interests of respective disregard the authority thus to unequal there- division equalize an and to in the land distributees without the motion sustained adjustment. The court a cash bearing evidence. interlocutory found decree ruling proper. The
The court’s and directed one-half party to be an undivided the interest of each land in kind and if this could not be the commissioners to divide the having dis- report court. commissioners done to the fact to the obeyed report appointed injunction, aside the court set 2022, new commissioners under Section Revised Statutes 1919.
A equalize owelty. partition sum thus is called assessed to Courts of equity jurisdiction (20 L. long award R. C. exercised it 736-739, 261) power 18-21; Cyc. 238, ; sparingly, sees. but the is used statutory implication in a few states where contrary appears
deemed denied. to be [Hoerr Hoerr, 223, 226, 735; v. Minn. 165 N. W. N. Wrenn W. Gibson, Ky. 189, express v. 13 S. W. no warrant There is 766.] practice 11, Chapter 13, statutes, for the our Article Revised Whether, all, chancery Statutes and how far if at our courts independent authority unnecessary have such of the statute it is decide; for, power being equitable must be exercised court and does not reside in commissioners. did not ask partition on that basis and court did not order it. The com *13 report missioners’ could not put ruling stand alone. We our on that ground. 1914-A, p. note; Cas. 650, Ruttiger, [Ann. Stortz v. 249 Ill. 494, 499, 94 N. E. If report the commissioners’ had been con 181.] firmed, it good would be against at least attack, collateral whether or supported not by an interlocutory ordering decree assessment of owelty (Sec. 2023, 1919); R. S. report but here the aside set question and the arises on appeal. direct reopen court’s refusal to assigns error in the trial Appellant
III. he improvements concerning the the case and admit certain acres, action the court’s put on the petition files. from the striking amended his second tried, as hereto The case was facts. These are the tendered petition. The sole issue amended stated, the first fore on farm, was whether he regards 160-acre by appellant, as the sought He contract. intestate’s oral the entitled to enforce 17, 1925, On March the court only partition of the 120-acre farm. specific denying performance a decree finding and rendered made a 280 acres in accordance with the ordering partition entire of the respondent’s The of commissioners prayer answer. first set in the April 2. they report filed their on was named in this decree and they respondent exceptions report; April On filed her to the sustained, and new were report were aside commissioners set April reported on commissioners of second set
appointed. Tbe 6, June court on consideration up for report The was taken made. of an order sale confirmed, and re- asked leave to day, appellant this, the same Following of his im- showing value and introduce evidence open the case having of purpose $3000, for provements 160 acres on the belated of- making partition. In into account them taken because at the the evidence sooner he had not tendered fer stated of find a decree court would time trial he was convinced the of the and offer were request 160' specific performance as acres. again appeared September, Thereafter, refused. pay stay on condition court of sale moved the the order permitted to file therewith, all costs in and that he be connection alleging petition itemizing improvements second amended $2905, their motion purpose to be aforesaid. The value for the prayer sustained, filed, postponed petition there- the sale being of should specific performance denied, that if be partition. During allowed credit same month the struck on its court out this second amended motion, own renewed, of land sold to the order sale was re- spondent, and sale confirmed. (a) questions presented appellant’s concrete are: should re- quests granted stage have been at the trial were when
made, procedural as a (b) matter right; or, that, if not was their judicial refusal such abuse discretion as to call for correction on appeal.
Appellant points
well-established rule that the decree declar
ing the
parties
interests of
ordering
partition-
interlocutory
is
subject
during
control
the court
progress
the further
cause until final judgment
(Davidson v.
Est. &
Davidson Real
Inv.
Co., 249
474, 493,
7)
Mo.
;
155 W.
S.
Spitts
case of
cites
v. Wells,
Coberly 87 S. W. Suit Coberly, 1, v. Mo. accounting rents, prayed an partition plaintiffs in which the C., general J. L. and for rel made to the defendant advancements plaintiffs had by J. L. C. answer denied the ief. The defendant any real and averred himself and another title to the estate involved by possession. alleged It was to be the owners adverse further plaintiffs could not maintain the action because were out of possession. ground partition On this latter trial court denied plaintiffs appeal. This court ruled evidence failed to show possession L. of the defendant J. C. so adverse as to amount cotenants, ouster reversed and' remanded the cáuse with directions to the court below!to allow the defendant J. L. C. to by making amend his answer claim for improvements, to take an accounting rents collected him, made and to partition. award 1066): Clay Mayer, v. Mo. 81 S. W. Plaintiff sued for specific performance of defendants’ contract convey land. Under plaintiffs contract the discharge mortgage were to thereon and pay $359.50, defendants purchase price. balance This they did, latter but instead paying mortgage off the they bought it and foreclosed, the bidding in defendants the land at the fore- closure sale. All these facts -were disclosed the petition, which prayed that an account be charging taken the defendants with the rents, profits, etc., and crediting them with the paid' amount on the mortgage, and decree be vesting rendered plaintiff" title in up- payment of the balance found due. The circuit court sustained a demurrer to the ground on the that it showed the contract as made performed had not been by the plaintiff! This upheld that, court finding,' but further ruled since it wus plaintiff paid had $359.50 defendants In cash, as a matter of equity the judgment below sustaining'the de- murrer should be reversed and the cause remanded with directions
590
proof
from
case,
appeared
if it
the
try
and
court to
circuit
to the
judgment
be
$359.50,
paid
should
in fact
plaintiff had
that the
interest.
with
amount
her in that
entered
ground
on
un
equity
221:
of
67
Suit in
Mo.
Yates,
Bradshaw v.
step
plaintiff to her
a deed executed
aside
to set
influence
due
The defendant denied the un
guardian.
her
had been
father, who
long period
of time
estoppel in
over
influence,
pleaded
due
lasting
improve
valuable
made
acquiescence
had
with her
no
and half owner. There was
being a cotenant
land,
ments on
improvements. The circuit
accounting
court
for the
.praji-er for an
appeal
On
court
ruled
defendant.
the case for the
decided
aside,
prevent multiplicity
but held that
should be set
deed
remanded with directions
reversed and
suits
cause should
the land
the value of
without reference
court
ascertain
the circuit
plaintiff
pay
would
improvements
if the defendant
be vested in defendant.
title should
ascertained the
value so
by appellant
persuasive arguments advanced
are
Despite
we
trial court committed error. The refusal of
not convinced that the
reopen
application
case
introduce
evidence on
first
if
improvements
proper,
reason,
other
be
value of the
no
pending
cause was
it
made while the suit was still
first amended
petition,
allegations
petition concerning
there were no
affecting
improvements
partition.
value
When re
sought
lief of
partition
predicated
that character
in a
case
is
must be
by appropriate allegations
pleading
him
it.
who seeks
Cyc. 219;
Lilly Menke,
190, 218,
Mo.
651;
[30
v.
Neither do we think there is sufficient
between
ejectment
partition
justify appellant’s
suits to
contention that
procedural right
present
improvements
he had the
to
his claim for
any
judgment. Ordinarily
ejectment
final
right
time before
possession
adversely
to
must
is
issue that
be determined
to the
question
improvements
before
compensation
defendant
as to
for
arise,
can
thought
lying
pro
is doubtless the
behind the
vision in our betterment
improvements
statutes
the suit for
shall
t
brought
ejectment.
judgmen
after
On
hand', in
the other
partition
accounting
improvements
suits the matter
part
for
parcel
case,
(and
of the
as we have indicated
may
above
we
add
this is
ejectment
true
duty
even in
actions where
compensate
improvements
precedent
ais
condition
a recovery
possession;
Mann
222
Doerr,
1,
92).
v.
121
19,
86,
Mo.
S. W.
And
so was held
in Spitts Wells, supra,
v.
compensation
failure
ask
for im
provements
partition
in a
subsequent
suit barred a
action therefor.
point
On this
the case
been
approval
has
cited with
in Forder v.
Davis, 38
107, 116,
Bushman,
Mo.
and Bushman v.
Lindsay Seddon, CC., concur. PER opinion CURIAM: The foregoing by Ellison, C., adopted opinion as the of the court. judges All concur, except Frank, J., not sitting. Liberty Foundry Emmett Appellant. Crane S. v. Company, (2d)W. 945. One,
Division March