
    Francis Tuppery, Defendant in Error, v. Charles Hertung, Plaintiff in Error.
    1. Practice, civil — Exceptions, lili of — Only matters patent on record noticed. —Where no exceptions are preserved, only such matters as are patent on the face of the record proper -will he noticed.
    2. Partition — Petition — Allegations, what sufficients — In a partition suit, allegations of seizin in the ancestor and descent to the heirs are, prima facie, sufficient to vest both title and possession in the latter.
    3. Partition — Under act of 1865, attorneys could not stipulate for ¡judgment in what cases. — "Whore the answer in a suit for partition stated, among other things, that administration had not been closed on the estate sought to be partitioned, and that there wore not sufficient personal assets to pay the debts of the deceased, the attorneys of record, under the partition '‘act of 1865 (Gen. Stat. 1865, ch. 152, $ 51), had no power to stipulate that judgment of partition should be rendered, even though it was further agreed that the proceeds arising from the sale under the partition should be subject to the debts of the deceased.
    
      Error to Second District Court.
    
    
      Brown & Davis, for plaintiff in error.
    To legally maintain partition, tbe petition must sbow affirmatively : 1. That the estate is held in joint tenancy, tenancy in common or coparcenery, and whether the estate is of fee, for life, for years, tenancy by curtesy, or in dower. (Gen. Stat. 1865, p. 611, §§ 1, 3 ; Gould’s PL, ch. 4, §§ 4-13 ; Stephens’ PI. 304; Myers v. Field, 37 Mo. 441; Frazer v. Roberts, 32 Mo. 457.) 2. That plaintiff is in actual possession of the realty with the defendant; the right of possession merely is not sufficient. (Lambert v. Blumenthal, 26 Mo. 473 ; McCabe v. Hunter, 7 Mo. 355; id. 446 ; Frazer v. Roberts, supra.) 3. That the intestate had title to the realty; mere seizin is not sufficient. (Frazer v. Roberts, supra; Gen. Stat. 1865, p. 611, § 3.) 4. ‘ ‘ That the estate from which the realty has descended has been finally settled, and all claims against it fully discharged.55 This is a statutory condition precedent to partition. (Glen. Stat. 1865, p. 611, § 51; 8 Cow. 369 ; Fithian v. Monks, 43 Mo. 520; Frazer v. Roberts, supra.')
    
    
      G. il. Green, for defendant in error.
   WagNER, Judge,

delivered the opinion of the court.

Error to a judgment of the Second District Court, where a judgment of the Court of Common Pleas of Cape Girardeau county was affirmed in a proceeding in partition. No exceptions are preserved, and therefore only such matters as are patent on the face of the record proper will be noticed.

We do not think that there is anything in the point that the petition is defective in not containing sufficient allegations to warrant the decree. It alleges seizin in the ancestor, and descent to the heirs, and that was prima facie sufficient to vest both title and possession. No objection was taken by answer, and the averment was substantially good.

The answer filed in the cause stated that administration had not been closed on the estate sought to be partitioned, and that a year had not elapsed since the taking out of letters of administration on the estate; that there were not sufficient personal assets to pay the debts of the deceased, and that the real estate would be required for that purpose.

With this answer standing on the record uncontradicted, the attorneys of record entered into an agreement by which they stipulated that judgment for partition should be rendered, and the proceeds arising from the sale should be subject to the debts of the deceased. In accordance with this arrangement a judgment for partition was rendered and the land ordered to be sold.

This proceeding was commenced and prosecuted to its final termination under the provisions of the partition act of 1865. The fifty-first section of that act declares that in all cases where proceedings are commenced under this chapter, and the lands, tenements or hereditaments, or any portion thereof, sought to be divided as hereinbefore directed, shall have descended to any of tbe parties in interest, no judgment of partition or assignment of dower shall be rendered, and no order of distribution shall be made, until the court shall be first satisfied that the estate from which the same has descended has been finally settled and all claims against it fully discharged. (Gen. Stat. 1865, ch. 152, § 51.) This section has been since that time modified and altered. (See 2 Wagn. Stat. 978, § 51.) I have no doubt about its being within the province of attorneys in the cause, in the conduct thereof, to agree upon the terms, and what kind of a judgment shall be entered.

But the judgment must be in conformity with the law, not in violation of it. The statute here is express and peremptory that no judgment of partition shall be rendered until the court shall be satisfied that the estate has been finally settled and all claims against it fully discharged. The action in the court below was to supersede the statute and proceed in direct conflict with its imperative prohibitions. It was not competent for the attorneys to do this.

The judgment must therefore be reversed and the proceedings dismissed.

The other judges concur.  