Opinion
March 3, 1952.
In an action for partition, plaintiff appeals from a portion of an order which granted in part and denied in part his motion to strike out the two defenses and the counterclaim contained in the answer. The appeal is from so much of the order as denies the motion to strike out the first defense on the ground of insufficiency. Order modified by striking out the word "denied" from the first ordering paragraph and by substituting in place thereof the words "granted on the ground that it appears on the face thereof that it is insufficient in law." As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. There was neither limitation of time nor expressed contingency which might terminate the agreement not to seek partition and it was, therefore, against public policy in that the power to alienate was suspended for an unreasonable time. ( Haeussler v. Missouri Iron Co., 110 Mo. 188; Shelby v. Shelby, 192 Ky. 304; 68 C.J.S., Partition, § 44, pp. 67-68.) Johnston, Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P.J., concurs in result. [See post, p. 1010.]