Rogers v. Miller

48 Mo. 378

• Court: Supreme Court of Missouri
• Decided: August 15, 1871
• Status: Published

Opinion

Currier, Judge,

delivered the opinion of the court.

A demurrer to the petition was sustained, and the plaintiffs bring the cause into this court by writ of error. The suit was for the partition of real estate. The petition shows, that the parties to the suit held the estate as tenants in common ; that the plaintiffs, Mary A. Rogers and Martha J. Dickinson, were the owners in fee of one undivided fifth of the premises, and that the defendants, Charles C. Miller, Paniel E. Miller and George R. Miller, were the owners in fee of three-fifths, each holding one-fifth. The petition makes no reference to the remaining fifth. The statute (2 Wagn. Stat. 967, § 3) requires that the “names, rights and title of all the parties interested ” in the estate sought to be divided shall be set out “ so far as the same can be stated.” The petition before us does not do that; it is entirely silent as to one undivided fifth part of the premises proposed to be partitioned. There is no averment that the owner was unknown, -or that there was any difficulty in pointing out the owner and defining his interest. The petition is defective in its treatment of this fifth interest. Apparently the error arises from assigning one-fifth to Mrs. Rogers and Mrs. Dickinson jointly, instead of assigning one-fifth to each of them. The plaintiffs should have confessed the demurrer and taken leave to amend. They chose, however, to stand by their defective petition, and the judgment declaring it insufficient must be affirmed.

The other judges concur.