Stephens v. Hume

Scott, Judge, delivered the opinion of the court. This writ of error was prematurely sued out, as there was no final judgment in the cause. This was a proceeding in partition, and in such there are two judgments — the one interlocutory, and the other final. The first is quod partitio fiet inter partes de tenementis, upon which a writ or commission goes, commanding that partition be made; and upon the return of this writ or commission executed, if the proceedings are approved by the court, the second judgment is given quod partitio firma et stabilis in perpetuum teneatur. This is the principal judgment, and before it is given no writ of error does lie. (Gudgell & Austin v. Mead and others, 8 Mo. 55.) This writ must then be dismissed. In the case of Reaume v. Chambers, 22 Mo. 54, it was held that the actual seizin of the wife was not necessary to entitle the husband to curtesy. (1 Hill, on Real Prop. 76, 77.) The permission given by the statute to the wife to remain in possession of her deceased husband’s mansion house, [351] and tbe messuages or plantation thereto belonging, does not affect the right to curtesy. Such possession is not adverse to the heirs of the husband. Writ dismissed; Judge Ryland concurring; Judge Leonard absent.