Holt v. Hanley

• Citation: 149 S.W. 1,245 Mo. 352
• Parties: MARY E. HOLT, Appellant, v. O. T. HANLEY
• Decision Date: 11 July 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 1

245 Mo. 352

MARY E. HOLT, Appellant, v. O. T. HANLEY

Supreme Court of Missouri, First Division

July 11, 1912

Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.

Reversed and remanded.

Fry & Rodgers for appellant.

(1) When dower once attaches the husband cannot by any act or omission defeat it. Davis v. Green, 102 Mo. 180; R S. 1909, Sec. 358. (2) The widow is entitled to dower subject to a vendor's lien. The land was not sold under or to enforce the vendor's lien. It was sold under the execution on the judgment against Holt on the accounts, and on the order of the court "so as to vest perfect title in the purchaser," the amount of the vendor's lien was ordered paid first out of the proceeds of the sale. Where the vendee of land has taken possession and paid part of purchase money, although no deed has passed, he has such interest as will make his vendor stand seized to his use; and after his death and sale by his administrator, his widow will have dower in the land, subject perhaps, to contribution of her proportion of amount paid by the administrator in satisfaction of vendor's lien. Hart v. Logan, 49 Mo. 47; Duke v. Brandt, 51 Mo. 221; Jones v Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo 510; Atkinson v. Angert, 46 Mo. 515; Thomas v. Hesse, 34 Mo. 13; Sweaney v. Mallory, 62 Mo. 485; Casteil v. Potter, 176 Mo. 76; Chrisman v. Linderman, 202 Mo. 605.

Robertson & Robertson for respondent.

(1) The appellant having failed to save an exception to the overruling of her motion for a new trial is precluded from an examination of any question except such as may appear upon the face of the record proper. Casler v. Chase, 160 Mo. 418; Hoffman v. Trust Co., 150 Mo. 520; Sicher v. Ramboseck, 193 Mo. 113; Wilbrandt v. Light Co., 135 Mo.App. 220; Serrano v. Railroad, 131 S.W. 371. The appellant makes no point on the record proper and her whole complaint is directed against such matters as are preserved within the bill of exceptions and having saved no exception to the overruling of the motion for new trial, the judgment should be affirmed. (2) The purchase price of the land not having been paid by plaintiff's husband to C. B. Rodes and there having been a judgment of foreclosure under the vendor's lien for the purchase price, the plaintiff can have no dower in the lands. Jones v. Bragg, 33 Mo. 337; Hart v. Logan, 49 Mo. 47; Duke v. Brandt, 51 Mo. 221; 14 Cyc. 948, 949, 917 (3); Fountaine v. Bank, 57 Mo. 552; 10 Am. & Eng. Ency. Law (2 Ed.), 137, 140; Bennett v. Shipley, 82 Mo. 448.

BROWN, C. Blair, C., concurs. Woodson, J., concurs in result only.

OPINION

BROWN, C. --

This action was instituted to the September term, 1907, of the Audrain Circuit Court, for the admeasurement of dower in the east half of the northeast quarter, and the east half of the west half of the northeast quarter, of section four, in township fifty-two of range ten in said county.

The petition states, in substance, that the plaintiff was lawfully married to S.W. Holt on the twentieth day of August, 1865, and lived with him as his wife until his death, which occurred April 28, 1907. That he died seized of an estate of inheritance in said real estate, and that she thereby became lawfully entitled to the possession of an undivided one-third part thereof as her reasonable dower therein. That defendant afterward entered into the premises and wrongfully deforced her thereof, and unlawfully withholds the same from her, after demand therefor, to her damage in the sum of $ 500. That the monthly value of the rents and profits of her dower is fifty dollars. She asks for the admeasurement of her dower and for damages as aforesaid and for general relief.

The answer so far as applicable to the issues in this case is as follows:

"Now comes the defendant and for his answer to plaintiff's petition, denies each and every allegation thereof, not hereinafter specifically admitted to be true.

"Defendant further answering, admits that he is the owner of and in possession of the said lands described in plaintiff's petition, and says that on the 5th day of March, 1879, one Charles B. Rodes, conveyed said lands to S.W. Holt, but defendant says that the said S.W. Holt never took possession of said lands nor was he entitled to the possession thereof.

"That said lands at that date were of the value of about seven dollars per acre and there were included in said conveyance not only the said lands described in petition but a total acreage amounting to two hundred and seventy acres.

"That on said date said S.W. Holt was in possession of and in the control of certain moneys, means and merchandise belonging to various and different parties and that at the date of said sale there was a deed of trust upon said lands for the sum of one thousand dollars and some interest which the said S.W. Holt assumed and agreed to pay as part of the purchase price thereof and this said balance of one thousand dollars remained as a vendor's lien against said lands in favor of the said C. B. Rodes, and the said S.W. Holt took the said property, means, merchandise and money which belonged to the parties aforesaid, and against their rights and invested the same in said lands without their knowledge or consent, and he then and thereby became a trustee for the owners of said merchandise, means and money, and held said lands for the use and benefit of said various parties.

"That all of said parties in the Moberly Court of Common Pleas, a court of general jurisdiction of the State of Missouri, obtained judgments against the said S.W. Holt for the unlawful conversion of said merchandise, means and money, and said judgments were as follows:

"One in favor of Vogel & Kohn for

$ 396.69

One in favor of Somers & Lynd for

309.11

One in favor of E. J. Sears for

193.56

One in favor of A. A. Mellier for

210.03

One in favor of S. Kinsbaker & Bro. for

295.25

One in favor of Malin, Fowler & Co. for

253.83

One in favor of Brown & Moore for

169.00

"And after said different claims had been reduced to judgments in favor of said various parties in said court of common pleas, in 1879, the said parties filed their suit in the circuit court of Audrain county to compel the payment of their said several judgments and have the same declared to be a lien against the lands described in plaintiff's petition and all of the said lands amounting to two hundred and seventy acres, and at the June term, 1880, in an action between all of said parties and C. B. Rodes and the said S.W. Holt, the said circuit court, being a court of general jurisdiction and having jurisdiction over the subject-matter and all of the parties thereto, did render a judgment ordering and decreeing that all of said lands be sold and did find that there was a balance due the said C. B. Rodes from the said Holt on the purchase price of said lands amounting in all to the sum of one thousand and twenty-seven and 30.100, and further decreeing that said judgment in favor said C. B. Rodes and against said Holt for said purchase price should bear interest at the rate of eight per cent per annum and did further find and determine that in said judgment the said Rodes had a prior lien on said lands until said amount was paid, and did further determine that said lands should be sold for the purchase price thereof in favor of said Rodes and that the balance of the proceeds arising from the sale of said lands after the purchase price and the expenses of said action was paid, should be applied upon their respective judgments in favor of the parties aforesaid in accordance with the respective amounts of their said judgments.

"That the court further entered an order and judgment finding in favor of said S.W. Holt that he was entitled to $ 300 of exemptions out of said lands and that said $ 300 be paid over to the said S.W. Holt and that the same be a prior judgment to all of the judgments aforesaid in favor of said parties, and did further order and decree that all of said lands be sold.

"Defendant further answering, says that said lands were sold under said decree at the October term of the said Audrain Circuit Court in 1880 and that the total cost of said sale amounted to $ 108.25, and that all of said land sold for the sum of nineteen hundred dollars, being the fair cash market value of said lands at said date, and the proceeds of said sale were first devoted to the payment of said costs, and second, to the payment of said judgment for said vendor's lien, and third, to the payment of said judgment for exemptions in favor of said S.W. Holt, and fourth, the remainder was distributed pro rata among the said several creditors aforesaid."

The plaintiff replied by general denial, and the cause went to trial. A jury was waived, and the court, after hearing the evidence, found the issues for defendant and entered judgment accordingly, from which this appeal was taken.

The plaintiff in due time filed her motion for a new trial which was overruled by the court. No exception was taken by her to this ruling. She filed in due time her bill of exceptions, setting out the evidence and other proceedings at the trial.

No exception was taken by the plaintiff to the action of the court in overruling the motion for a new trial. No rule of practice is more firmly established in this State than that all matters of exception must be presented for re-examination in the motion for a new trial, and exception taken, and preserved in a bill of exceptions, to the final action of the court thereon, to authorize their examination upon appeal or writ of error. Our examination of the errors complained of in this case must therefore be confined to such as appear upon the record proper. [Sicher v. Rambousek, 193 Mo. 113, 128, 91 S.W. 68, and cases cited.]

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