211 S.W. 23 (Mo. 1919), McFarland v. McFarland

Citation211 S.W. 23, 278 Mo. 1
Opinion JudgeBROWN, C.
Party NameLOU McFARLAND, Appellant, v. KATHERINE McFARLAND et al; SALINA McFARLAND, by GEORGE P. WRIGHT, Her Guardian Ad Litem, Appellant
AttorneyCook & Cummins for appellants. Shinabargar, Blagg & Ellison for respondents.
Judge PanelBROWN, C. Railey, C., concurs in result. Graves, J., concurs in separate opinion. GRAVES GRAVES J. (concurring.)
Case DateApril 07, 1919
CourtSupreme Court of Missouri

Page 23

211 S.W. 23 (Mo. 1919)

278 Mo. 1

LOU McFARLAND, Appellant,

v.

KATHERINE McFARLAND et al; SALINA McFARLAND, by GEORGE P. WRIGHT, Her Guardian Ad Litem, Appellant

Supreme Court of Missouri, First Division

April 7, 1919

Appeal from Nodaway Circuit Court. -- Hon. Charles H. Mayer, Judge.

Reversed and remanded.

Cook & Cummins for appellants.

(1) The Statute of Limitations will not begin to run against the widow, and in favor of the heirs, until such time as they assume and assert an adverse and hostile possession against her. In other words, so long as the widow and children, in unison and in harmony, occupy the premises, the law through public policy will not bar the rights of either. It favors and encourages such relations, and does not compel their destruction, by driving the parties into the courts through fear of the Statute of Limitations. Chrisman v. Linderman, 202 Mo. 614. (2) The widow holding and enjoying the dower right, and the heirs of the husband holding and enjoying their rights as such, were tenants in common. R. S. 1909, sec. 2778; 14 Cyc. 961. (3) The possession of one tenant in common is the possession of all, and the statute does not begin to run in favor of one until he begins an open, hostile and adverse possession against the others and makes that claim known to them. 1 R. C. L. 742; Wood on Limitations, 621; Hynds v. Hynds, 253 Mo. 33.

Shinabargar, Blagg & Ellison for respondents.

(1) Sec. 391, R. S. 1909, bars the appellant widow's action for the recovery of dower. (a) The opinion has been judicially expressed that this law was passed to prevent the further enforcement of the harsh doctrine announced in Johns v. Fenton, 88 Mo. 64, to the effect that no amount of adverse possession would bar an action for the recovery of dower, the widow in that case having commenced her action thirty-eight years after the death of her husband. Robinson v. Ware, 94 Mo. 688. (b) This being the reason for the enactment, it is clear the intention of the Legislature was to provide a Statute of Limitations applicable to dower, which would not depend on adverse possession for its operation. (2) The plain language of the statute furnishes the most convincing proof that its operation is not dependent upon adverse possession, as between the widow and heirs or anyone else. (a) It absolutely and unequivocally fixes the time at which it shall begin to run at a day certain -- the date of the death of the husband -- which is the time when the cause of action accrues. (b) It says all actions for dower shall be forever barred unless commenced within the time limited. (c) It is levelled at the widow, or her assignee, because it bars actions for the recovery of dower claimed or demanded, (not actions for the assignment of dower). The only one who would claim or demand dower or sue to recover it would be the person entitled to the dower. If an heir or creditor should proceed under Section 379, Revised Statutes 1909, to have dower set out, his action would not be for the recovery of dower, but for its assignment to the widow. (d) Section 391 is imbedded in Article 16 of Chapter 2, which defines dower and enumerates its incidents. Evidently it is intended to constitute an integral part of the law of dower and is to be considered in connection with Sections 367 and 369, which prescribe the procedure by which a widow may sue for the recovery of her dower. Section 367 runs in the disjunctive and contemplates many instances in which a widow may sue for dower though she be in possession of the land in which it is claimed, or be receiving rents therefrom. Section 391 bars in ten years from the death of the husband all rights of action conferred by Sections 367, 369, and the other sections of the article on dower. (e) Section 391 is like our general Statutes of Limitation barring personal actions (See secs. 1887 to 1915, R. S. 1909), which admittedly do not involve any question of adverse possession, and wholly unlike the limitation statutes in which adverse possession is a necessary element (See secs. 1879 to 1886 R. S. 1909). These expressly make possession an essential ingredient. (4) Section 391 has been noticed by the Supreme Court of this State in five cases, and in all of them has been held to impose an absolute limitation on an action for the recovery of dower. Robinson v. Ware, 94 Mo. 678; Harrison v. McReynolds, 183 Mo. 539; Kennedy v. Duncan, 224 Mo. 662-3; Jodd v. St. L., I. M. & S. Ry. Co., 259 Mo. 239. (5) If Section 391 runs against a widow in possession of the land in which dower is claimed, or one receiving rents therefrom, then the heirs would not be estopped to claim the protection of the statute because of their conduct in permitting the widow to assume such rights, for such conduct would not be inconsistent with the running of the statute or with reliance upon it. 11 Am. & Eng. Ency. Law (2 Ed.), 422. (a) The widow's ignorance of her rights and duties did not exempt her from the operation of the statute. 25 Cyc. 1212; 19 Am. & Eng. Ency. Law (2 Ed.), 213; Callan v. Callan, 175 Mo. 360; State ex rel. v. Yates, 231 Mo. 283; Johnson v. United Rys., 243 Mo. 295; Putnam County v. Johnson, 259 Mo. 83. (b) But the ignorance of the heirs and the widow's equal opportunity to inform herself of her rights would make the doctrine of estoppel inapplicable to the heirs. 16 Cyc. 730, 741; 11 Am. & Eng. Ency. Law (2 Ed.), 434; De Lashmutt v. Teetor, 261 Mo. 440; Keeney v. McVoy, 206 Mo. 57; Harrison v. McReynolds, 181 Mo. 548. (c) The payment of the rent by the heirs to the widow did not evidence an intention to waive the statute barring the widow's action for assignment of dower, because she was equally entitled to such rent before dower was assigned. Sec. 257, R. S. 1909. (d) The recognition of the widow's unassigned right of dower did not estop the heirs because she did in fact have that right, at the time. Sec. 345, R. S. 1909. (e) It was not the duty of the heirs to have dower assigned to the widow. Sec. 379, R. S. 1909; Fischer v. Siekmann, 125 Mo. 178; Moran v. Stewart, 246 Mo. 474. (6) The widow and heirs were not tenants in common. (a) The premise on which the appellant has based her whole theory of the case is that the widow and heirs were tenants in common. This is not the law in Missouri or most other jurisdictions. 14 Cyc. 961; 10 Am. & Eng. Ency. Law (2 Ed.), 146; 38 Cyc. 3; 17 Am. & Eng. Ency. Law (2 Ed.), 651; Wigley v. Beauchamp, 51 Mo. 547; McClanahan v. Porter, 10 Mo. 751; In re Final Settlement of Tyler, 40 Mo.App. 383. (b) The prime essential of a tenancy in common is unity of possession. The widow has no joint right of possession in virtue of her dower, which, until assigned, is only a right or chose in action. 14 Cyc. 960; 10 Am. & Eng. Ency. Law (2 Ed.), 146; Waller v. Mardus, 29 Mo. 27; Carey v. West, 139 Mo. 177.

BROWN, C. Railey, C., concurs in result. Graves, J., concurs in separate opinion.

OPINION

Page 24

[278 Mo. 6] BROWN, C.

Plaintiff, Lou McFarland, the widow of Seth McFarland, deceased, instituted this action in the Circuit Court of Nodaway County on February 9, 1916, against the respondents, children by a former wife and heirs at law of Seth McFarland, who died seized of an estate of inheritance in the lands in controversy May 15, 1904. The land embraced about two hundred acres in Nodaway County. The petition, after stating these facts, proceeds as follows:

"Plaintiff further states that by reason of said marriage, and by reason of the facts herein recited, upon the death of the said Seth McFarland, she became entitled to dower in the above described land and that dower has not been heretofore assigned...

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