159 Mo. 14 | Mo. | 1900
In the year 1859, one Reuben H. Scott died intestate seized in fee of the southeast quarter of section 34, and thirty-six acres of the northeast quarter of the southwest quarter of section 36 in township- 28, range 32, in Jasper county, Missouri, leaving him surviving, three children, William M., Allen Thomas and Prances- R., his only heirs at law. Afterwards, in the year 1878, the said Prances R. intermarried with the defendant J. G. Wamack. Afterwards, on the 7th day of February, 1879, the said William M., Allen Thomas and Frances R., made a voluntary partition of the real estate aforesaid so inherited by them from their father, by means of three -deeds of that date, of one of which the following is a copy:
“This Indenture, made on- the seventh -day of February, A. D., one thousand eight hundred and seventy-nine; by and between W. M. Scott and Judy Scott, his wife, -and A. F. Scott and M. E. Scott, his wife, heirs of Reuben BE. Scott, deceased, of the county of Jasper and- State of Missouri, parties of the first part; -and Frances R. Wamack and J. G. Wamack her husband, of the county of Jasper, and State of Missouri, parties of the second part, Witnesseih, that the said parties of the first part, in consideration of the division of the estate of Reuben IT. Scott, deceased, the division of which is hereby acknowledged, do by these presents, remise, release and forever quitclaim unto the said parties of the second part, the following described lots, tracts or parcels of land, lying, being and situate in tlhe county of Jasper and State of Missouri, to-wit: One-third off of the east side of the southeast quarter of section thirty-four, township twenty-eight, range*18 thirty-two, said- east lot or parcel to contain fifty-three and one-third acres, more or less. Also twelve acres, more or less, off of the south side of a thirty-six acre tract described as- follows : part of the northeast of the southwest quarter, section thirty-six, township twenty-eight, range thirty-two. To Have and To Hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging, unto the said parties of the second part, and) their heirs and assigns, forever: so that neither the said parties of the first part, nor their heirs, nor any other person or persons for them or in their names or behalf, shall or will hereafter claim or demand' any right or title to the aforesaid premises, or any part thereof* but they and every one of them shall by these presents be excluded and forever barred. In Witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year first above written.”
The other two deeds are in precisely the same form, in one of which “Frances R Wamack and J. Gr. Wamack her husband and Allen T. Scott and M. E. Scott his wife, heirs of Reuben H. Scott, deceased,” are the parties of the first part, and “W. M. Scott and Judy Scott his wife” are the parties of the second part, and the land is described aé “one-third off the west side of the southeast quarter of section thirty-four, township twenty-eight, range thirty-two; said west tract or lot to contain fifty-three and one-third acres, more or less. Also twelve acres, more or less, off of the north side of a thirty-six acre tract, described as follows: part of the northeast of southwest quarter, section thirty-six, township twenty-eight, range thirty-two.”
In the other, “W. M. Scott and Judy Scott his wife and Frances R. Wamack and J. Gr. Wamack her husband heirs of Reuben H. Scott, deceased,” are the parties of the first part •and “Allen T. Scott and M. E. Scott his wife” are the parties
These deeds were all severally acknowledged by the respective parties of the first part and duly reporded among the land records of said county in Book 47, pages 86 to 96, and thereupon each took possession, and thereafter continued to hold their respective shares in severalty. Afterwards, in the year 1883, the said Frances R. Wamack died, leaving her surviving, three minor children by her said husband, viz., Joseph W., Allen T., and Pearl M. Wamack, who are the other defendants in this, suit, in which the premises in controversy are the land described in the first of these deeds, quitclaimed as aforesaid to “Frances R. Wamack and J. G. Wamack her husband.”
Afterwards, on the first of October, 1884, the said J. G. Wamack executed a deed of trust of that date conveying the premises in controversy to W. E. Brinkerhoff, trustee, to secure the payment of an indebtedness of $350 to Hannah C. Williams, which was duly foreclosed by sale, and the plaintiff Whitsett became the purchaser thereof, received the trustee’s deed therefor, dated December 6, 1889, went into possession under the same, and afterwards instituted this suit in partition claiming in his petition that he is the owner of the undivided two-thirds of the premises and that the minor defend
The court below sustained the claim of the plaintiff, found that he was the owner in fee of the undivided two-thirds of the premises in controversy, and of an estate in the remaining undivided third for the life of the said J. G. Wamack, and that the minor defendants were each entitled to an undivided one-ninth part of the premises subject to said life estate, and decreed partition accordingly, from which decree the minor defendants by their guardian ad litem appeal.
Some parol evidence was introduced on the trial, hut as it in no way changed the complexion of the case as shown by the records, and it appeared that the only knowledge plaintiff had of the facts of this voluntary partition was that disclosed by the records, that evidence need not be noticed.
(1) Counsel for plaintiff in their argument in support of the decree of the circuit court seem to assume that our statute of partition, different in some respects from those of other States, in some w.ay affects the title in question. But
With this premise we proceed- to the consideration of the cases cited, the most recent of which is the case of Harrison v. Ray, 108 N. C. 215, directly in point, in which one
The learned judge further on in his opinion held that the children of Oakley Harrison were not estopped from asserting title by reason of his having caused the deed to be registered; citing Yancey v. Radford, 86 Va. 638. In this State the lands of an intestate descend to his children “in parcenary” (E. S. 1889, sec. 4465), and the following extract from the opinion in the Virginia case cited, is strikingly apposite to the case in hand: “It has been oftén said that ‘partition between co-parceners neither amounts to nor requires an actual conveyance. It is less than a grant. Its operation is not to pass land by a fresh investiture of the seizin, for co-parceners are supposed to be already in possession of the whole lands. Partition, therefore, makes no degree; it only adjusts the different rights of the parties to the possession. Each does not take her allotment by purchase, but is as much seized of it by descent from the common ancestor as she was of her undivided share before partition.’ [All. Part., 124, 128.] This citation from Allnatt on Partition has been often approved. [1 Lomax, Dig. (2 Ed.), 634; Bolling v. Teel, 76 Va. 493; 2 Min. Inst. (2 Ed.), 439 — where the same is cited from Lomax Dig., supra.] This deed, standing alone, and all the deeds standing alone, and all the deeds standing together, could affect nothing more.”
The same effect must certainly be predicated of the deed under which the plaintiff claims in this case in which it appears by its recitals that the only consideration was the partition and the deeds were simply deeds of release. The doctrine thus clearly defined and its application shown' in the foregoing authorities, seems to be supported by the general consensus of judicial opinion in the United States. [McBain v. McBain, 15 Ohio St. 337, 86 Am. Dec. 478; Tabler v. Wiseman, 2 Ohio St. 207; Farmers’ & Merchants’ Nat. Bank v. Wallace, 45 Ohio St. 152; Wade v. Deray, 50 Cal. 376; Avery v. Akins, 74 Ind. 283; Bumgardner v. Edwards, 85 Ind. 117; Elston v. Piggott, 94 Ind. 14; Dexter v. Billings, 110 Pa. St. 135; Weeks v. Haas, 3 Watts & Sergeant, 520; Weiser v. Weiser, 5 Watts, 279; Davis v. Agnew, 67 Texas 206, 2 S. W. 376; Grigsby v. Peak, 68 Texas 235; Freeman on Co-Ten. & Part. (2 Ed.), sec. 396.]
There is nothing in the case in 45 Ohio St. 152, supra, rolled upon by counsel for plaintiff -antagonistic t-o this doctrine. On the contrary, it is therein distinctly recognized and asserted, though the case is taken out of its operation,
The only divergence from the doctrine that we have found in the authorities is in Weeks v. Haas, supra, in which it was held that, “If partition be made between tenants in common, who are femes covert, and mutual releases be executed to the husbands, they do not vest absolute estates in them, but only in trust for their wives. But if such re