
    JOHN J. JOERGER et al. v. CHRISTINE JOERGER, Appellant.
    Division Two,
    January 31, 1906.
    1. ESTATE BY ENTIRETY. A deed to a husband and wife and the survivor of them creates an estate by the entirety.
    2. -: Divorce: Partition. A divorce of husband and wife destroys an estate by ,the entirety theretofore existing. between them, and, if in the decree the legal interst of the defendant is not awarded to the plaintiff, they are thereafter tenants in common. And being cotenants, either is entitled to partition, and if either dies then the devisees of the deceased one may maintain partition against the other, unless the other’s money paid for the property.
    ' 3. -: -: -: Resulting Trust: Character of Proof. In a partition suit brought by the husband against the wife, the burden is on her to show that property deeded to her and him and the survivor of them, which estate by the entirety was transmuted into a co-tenancy by a divorce in her favor, was paid for with her individual money; and unless the proof is clear and satisfactory on the point, he will be held to be the owner of an undivided half interest therein.
    Appeal from St. Louis City Circuit Court.— Eon. Warivick Eough, Judge.
    Affirmed.
    
      Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant.
    (1) This being a suit for partition, and the answer of defendant having pleaded facts entitling her to equitable relief, this action is an equitable one and this court will review the whole record as if the suit had originated in this court. Sheridan v. Nation, 159 Mo. 27; Railroad v. Brandon, 81 Mo. App. 1; Robertson v. Shepherd, 165 Mo. 360; Caldwell v. Wright, 88 Mo. App. 604; Roth v. Wire Co., 94 Mo. App. 236. (2) The earnings of defendant and the profits of the business conducted by her after 1875 were her separate property and her husband could not acquire any interest therein unless she consented thereto in writing. R. S. 1899, sec. 4340; Rogers v. Bank, 69 Mo. 560; Broughton v. Brand, 94 Mo. 1691; Owings v. Wiggins, 133 Mo. 630; Alkire Grocer Co. v. Ballinger, 137 Mo. 369; Case v. Espenchied, 169' Mo. 215; Lilliard v. Wilson, 178 Mo. 145. And this is true notwithstanding the fact that the marriage between the parties was contracted prior to 1875. Winn v. Riley, 151 Mo. 61. (3) The purchase of real estate by plaintiff Anton Joerger, while the husband of defendant, with her earnings or the profits of her business, either in whole or in part, must be held to be a purchase for defendant in whole or pro tcmto notwithstanding she consented thereto, unless her consent be evidenced by a writing as required by the statute. Bowen v. Mc-Kean, 82 Mo. 594; Broughton v. Brand, 94 Mo. 169; McGuire v. Allen, 108 Mo. 403; Seay v. Hesse, 123 Mo. 450; Cooper v. Standley, 40 Mo. App. 38; McLeod v. Tenable, 163 Mo. 536. (4) In partition all the rights which the several co-tenants have against each other respecting the common property may be adjusted and one tenant credited with repairs and improvements and another charged with rents. Gunn v. Thurston, 130 Mo. 339; Holloway v. Holloway, 97 Mo. 629; Spitts v. Wells, 18 Mo. 468. (5) Even though the Natural Bridge road property was not the separate estate of defendant, she was entitled either to partition in kind so that the portion improved by her might be set out to her with the improvements and repairs, thereon, or she was entitled to contribution from plaintiff for the value of the improvements and repairs. Spitts v. Wells, 18 Mo. 468; Green v. Putnam, 1 Barb. 507; Hall v. Piddock, 21 N. J. Eq. 314; Brookfield v. Williams, 2 N. J. Eq. 341; Dougherty v. Crowell, 11 N. J. Eq. 203; Mahoney v. Mahoney, 65 111. 406; Martindale v.' Alexander, 26 Ind. 104; Freeman on Co-tenancy & Partition (2 Ed.), sec. 509. This is true in equity, though .not at law. McDearmon v. McClure, 31 Ark. 559; Williams v. Coombs, 88 Me. 183. But the repairs must be such as are absolutely necessary. Dech’s Appeal, 57 Pa. St. 472; Farrand v. Gleason, 56 Vt. 663; Fowler v. Fowler, 50 Conn. 256; Alexander v. Ellison, 79 Ky. 148; Denman v. Prince, 40 Barb. 217; Clark v. Plummer, 31 Wis. 442. (6) If plaintiffs were entitled to partition, there being no evidence that the property in question could not be partitioned in kind, but on the contrary that it was susceptible of such division, it was erroneous to order a sale of the property and division of the proceeds. Rhorer v. Brockhage, 15 Mo. App. 16; R. S. 1899, see. 4425.
    
      Bassieur, Sclmurmacher <& Bassieur and Henry Boemler for respondents.
   GANTT, J.

— This is a proceeding originally brought by Anton Joerger, Edward P. Luecking and H. J. Krembs against Mrs. Christine Joerger, for the partition of two pieces of real estate, to-wit: Lots ten and eleven of the subdivision by James B. Clay of lots one to five, in block 23 of Old Orchard tract and in block 4441 of the city of St. Louis, said lots having together a front of fifty feet, on the south side of Natural Bridge road, by a depth, to an alley southwardly, of one hundred and seventy-nine feet and six inches, and bounded west by lot nine, north by Natural Bridge road, east by lot thirteen of said block, and south by said alley, conveyed to said Joerger by deed dated the 18th day of September, 1879, recorded in book 617, page 215, in the recorder’s office in the city of St. Louis; and a tract of land situated in the county of Ste. Genevieve in the State of Missouri, all of the north half of the southwest quarter of section two, township thirty-eight, range six, east, and the north part of the south half of said southwest quarter of section two, township thirty-eight, range six, east, the last-described land containing about forty-five acres, and containing in the aggregate one hundred and twenty-five acres, more or less.

Judgment for partition and an order of sale of said land was rendered at the February term, 1903, of the circuit court of the city of St. Louis. The defendant filed her motions for new trial and in arrest of judgment, which were by the court overruled, and defendant was granted an appeal to this court.

During the pendency of this appeal in this court ■ and on the 8th day of May, 1904, Anton Joerger, the husband, departed this life testate, and by his last will and testament devised his interest in said estate to John A. Joerger, Paul Joerger, Elizabeth Joerger, Lena Benson and Christine Hammond, and suggestion of the death of the said Anton Joerger was duly made and scire facias ordered to said devisees to show cause why they should not be substituted as plaintiffs in the place and stead of said Anton Joerger, which said scire facias was duly issued and served upon the said devisees, in January and February, 1905, commanding them to appear in this court on the first day of the April term of this court for the year 1905. And no cause to the contrary having been shown, it was ordered that this cause stand revived in their names, together with the plaintiffs Luecking and Krembs.

The interest of the said Krembs results from the giving of a note by the said Anton. Joerger, on may 24, 1900, to the said Krembs, for the sum of $550, payable in one year thereafter, and the execution and delivery of a déed of trust to the plaintiff Edward P. Luecking as trustee on the undivided one-half interest of the said Anton Joerger in said real estate and lots on the Natural Bridge road as above described, tbe same not having been satisfied when this action was commenced nor at tbe date of tbe judgment. Tbe answer of Mrs. Christine Joerger admitted tbe marriage of Anton Joerger and herself and her divorce from tbe plaintiff on tbe 25th of January, 1900, and that tbe description of tbe property mentioned in the. petition was correctly set forth, and then denied all tbe other ¡allegations of tbe petition. Tbe answer then set up by way of cross-bill that all tbe real estate described in tbe petition was tbe sole and separate estate of tbe defendant Christine Joerger, purchased with her own money, and that she bad expended large sums of money, $1,000, improving, repairing and maintaining tbe same, and that whatever rights tbe plaintiffs, Edward P. Luecking and H. J. Krembs, bad acquired in tbe property, they bad obtained subsequently to tbe institution of this suit and tbe filing of tbe defendant’s answer herein, and with full knowledge of defendant’s rights in tbe premises, and prayed a decree that tbe property described should be adjudged tbe sole and separate estate of tbe defendánt Christine Joerger, and in tbe event tbe same should not be found to be her separate estate, that she should have a lien on tbe said property superior to tbe plaintiffs for tbe sums expended by her for improvements and repairs and such additional relief as she might merit. Tbe reply was a general denial of tbe new matter set up in the answer.

Tbe cause was referred by consent of parties, to George F. Beck, Esq., a member of tbe bar, to be tried, who beard tbe evidence and on May 9, 1901, filed bis report therein with a transcript of tbe evidence and testimony taken before him. Tbe evidence tended to prove without contradiction that Anton Joerger and Christine Joerger, tbe defendant, were married in Cincinnati, Ohio, in 1854.

Tbe plaintiff offered and read in evidence a deed from Pattie D. McCowan and B. H. McCowan, her bus-band, of Jefferson county, Kentucky, dated September 18, 1879, to Anton Joerger and Christine Joerger, recorded September 30, 1879, in book 617, page 215, of the St. Louis recorder’s office, which was an ordinary warranty deed and conveyed the property first described in the petition, located in the city of St. Louis, on the Natural Bridge road. The habendum clause of the deed is as follows: “To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances, immunities and improvements thereto belonging or in anywise appertaining unto the said parties of the second part, and to the survivor of them and to the heirs and assigns of such survivor.” Plaintiff also offered and read in evidence, a deed from August Kreiger to Anton Joerger and Catherine Joerger, husband and wife, dated August 28, 1890', recorded in book 45 at page 217 of the recorder’s office of Ste. Genevieve county, on August 30, 1890, conveying the property secondly described in the said petition and situated in said Ste. Genevieve county.. This deed is also a general warranty deed and the habendum clause is as follows: “To have and to hold the same, together with all the rights, immunities, privileges and appurtenances to the same belonging, or in anywise appertaining, unto the said parties of the second part and to the survivor of them and to their heirs and assigns forever.” Plaintiff also read in evidence a deed of trust made by Anton Joerger, March 24, 1900, and duly recorded in the city of St. Louis, conveying an undivided one-half interest in the property above described on the Natural Bridge road in the city of St. Louis, to the plaintiff Edward Luecking in trust to secure to the plaintiff H. J. Krembs, the payment of a principal note for $550, one year after date, and two interest notes each for $16.50 payable in six and twelve months after date, respectively. Plaintiff admitted that H. J. Krembs knew that this partition suit was pending when he loaned the money secured by the deed of trust offered’ in evidence. The evidence also disclosed that there were five children horn of the marriage between Anton and Christine Joerger.

The warranty deeds offered in evidence to Anton Joerger and Christine, his wife, created an estate in them by entireties, in both tracts of land sought to be partitioned in: this proceeding. By the divorce in 1900, the tenancy by entirety was destroyed, and after that date they became tenants in common in said real estate. [Russell v. Russell, 122 Mo. 235; Freeman on Cotenancy and Partition (Ed. 1874), sec. 444.]

Prima facie, then, plaintiff was entitled to a partition as prayed, and the burden rested on the defendant Mrs. Joerger to establish that she was the sole owner in equity of both the said tracts, by reason of having furnished the purchase money therefor. The property located on the Natural Bridge road was acquired in 1879 and the title remained as acquired up to the present time with the exception of the deed of trust placed upon it by Anton Joerger in favor of H. J. Krembs. No effort was made by the defendant, when she obtained the divorce from her husband, Anton Joerger, to have his legal interest in this property divested and awarded to her. In her petition for a divorce, among other allegations, the defendant alleged that her husband, Anton Joerger, was the owner of real and personal property of great value and prayed for an allowance for alimony, and was awarded one hundred dollars alimony. The evidence tends to show on the part of the plaintiff that the $550 borrowed from Krembs, was obtained for the purpose of paying the court costs, taxes, the one hundred dollars alimony, and tji© defendant’s attorney fees. The testimony in regard to the furnishing of the money with which the Natural Bridge road property was paid for was irreconcilably conflicting. It appears that Anton Joerger when he was married in 1854 was a charcoal peddler in Cincinnati, but quit that business sometime before he left that city; that he and his wife removed to St. Louis in 1857. He testified that he saved money selling charcoal in Cincinnati, that while he drank some he was never a hard drinker. In the fall of 186.1, he enlisted in the Federal army, and was discharged in 1862 on account of disabilities. He has received pensions, at the rate of $18 at first, and then $24, and it was finally increased until he received $72 per month. At one time he got $1,800 back pay.

'John Schmidt testified that he had known Anton Joerger and his wife for twenty years, that sometimes about the year 1880, as well as he could recollect; he loaned Anton Joerger $400 and that Anton repaid it in a little over a year after that time; that he thinks Anton purchased improved property with the money he loaned him. Witness had a poultry stand at Biddle Market, and Mrs. Joerger had a stand at the same market, she sold flowers and things that they raised; he saw her husband on the market every week; he came in with the wagon; both he and his wife sold things at the market; he never saw Joerger drunk as long as he stayed on the market; after Mrs. Joérger left the market, she had a dry goods store on the Natural Bridge road. There was much testimony to the effect that Mrs. Joerger was an industrious and energetic business woman, she sold flowers and vegetables, but we agree with the referee, after a careful reading of this evidence, that the proof does n'ot establish that Mrs. Joerger carried on this business and earned all the profits arising from it by her own unaided efforts and was entitled to it as her sole and separate property. The evidence tends to show that prior to the war, at least, and for some time afterwards, she was assisted by her husband find their children. The evidence shows that Anton Joerger, in 1878, received $600 from a policy of fire insurance, which he had on certain premises leased by him, and this money was used in purchasing real estate which was afterwards sold to one Klockman, and this money, derived from the sale of the lots to Klockman, was used in 1879 to buy the lots on the Natural Bridge road. With respect to the farm in Ste. Genevieve county the testimony tends, to show that Anton paid all of the purchase money, except, perhaps, twenty-five dollars, and the evidence also preponderates that Anton furnished the means for making the improvements on the farm. With respect to the repairs made on the Natural Bridge road property the evidence does show that the defendant paid for some of these repairs out of her own property prior to the date of her divorce from the plaintiff, and without any request from him and without his assent.

As we have said, the testimony was very conflicting on this question as to the furnishing of the money. It was altogether oral. These witnesses testified before the referee, who saw them and had an opportunity to, notice their demeanor and manner of testifying and was in a much better position to judge of their credibility than we are. There are no circumstances of such overweening significance as to enable us to say that Mrs. Joerger and her witnesses should be credited and approved, and those of her husband should be disregarded and rejected. The testimony tends to show a very bitter feeling between the parties, but.we have been unable to find that clear and satisfactory proof which ought to exist to justify us in setting aside a legal title of over twenty years in the one instance, and ten years in the other. The burden was on the defendant to establish that the deeds made to her and her husband of these lands were in truth and in fact purchased entirely with her own means. We agree with the referee that she has not sustained this burden and the judgment of the circuit court on this branch of the case was unquestionably right.

As to whether partition in kind can be made without resorting to a sale of the premises, we think the character of the property is such that it is not susceptible of an equal division in kind, especially since the plaintiff Anton has died since the judgment was rendered in the circuit court and his interest has devolved upon his five- children, and this part of the decree is also affirmed.

It follows, of course, that the deed of trust in favor of Krembs is a good and valid lien on the undivided interest of Anton Joerger in the lands in suit, and as against the defendant Christine Joerger.

Our conclusion, then, is that the judgment and decree of the circuit court should be and is in all things affirmed.

Burgess, P. J., and Fox, J., concur.  