Cazier v. Hinchey
| Decision Date | 08 March 1898 |
| Citation | 44 S.W. 1052,143 Mo. 203 |
| Parties | Cazier v. Hinchey, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
F. B Ellis for appellant.
(1) The deposition of Oyler should have been admitted in evidence; it tended to prove that there was a marriage settlement between the plaintiff and James Cazier, admitting that the evidence was hearsay. (2) Post-nuptial agreements for separation and maintenance will bar dower, although the intervention of a trustee are valid, and, where accepted by the wife in lieu of dower, will be held to bar her dower right. Gorbert v Bowling, 81 Mo. 214; Roberts v. Walker, 82 Mo 200; Lyons v. Phillips, 18 Mo. 23. (3) Marriage settlements, like marriages, can be proven by hearsay testimony. The deposition and testimony of Oyler should have been admitted. Eilliotte v. Piersal, 1 Pet. 328; Fowler v. Simpson, 15 S.W. 682; 1 Greenl. on Ev. 103. (4) The evidence of Oyler tended to prove that the plaintiff had relinquished all right or claim to dower in any property of the said James Cazier, her husband; if by her declaration of that time, parties were thereby advised and purchased land, she is estopped from claiming dower. Hart v. Giles, 67 Mo. 175; Galbreth v. Lunsford, 9 S.W. (Tenn.) 365; Coal Run Coal Co. v. Jones, 29 N.E. 89; Emery v. English, 23 Ct. (Conn.) 753; In re Meyrson, 28 P. 388 (Ore.) . (5) The copy of deeds should not have been admitted in evidence for the reason it was not shown that they were not in the custody of plaintiff, nor did the copy of deeds have the certificate of the recorder who recorded said deeds. A record copy of a deed can not be introduced until the nonproduction of the original is accounted for, by showing that it is not in the power of the party wishing to use it. Stroin v. Murry, 49 Mo. 337; Farrel v. Brown, 32 Mo. 328; Carr v. Carr, 36 Mo. 408. (6) The court should not have approved the report of the commissioners, for the reason, if no other, that the only title which was proven in Cazier was the land in section 10 which was, according to the proof, entered with money belonging to his wife number 2, which was excluded by the court. Fountaine v. Boatmen's Saving Institute, 57 Mo. 552; Moran v. Williams, 25 Mo.App. 22; Gentry v. Woodson, 10 Mo. 224. (7) When the dower sought to be assigned, and the land is in several tracts, then the dower must be assigned in each tract separately. In this tract the dower was assigned in one contiguous piece, which was prejudicial to defendant. Thomas v. Herse, 34 Mo. 13. (8) In this case, the commissioners made no deduction for taxes, which they should have done. Runnels v. University, 96 Mo. 226; Griffin v. Reyan, 79 Mo. 73.
H. T. Herndon and W. G. Cochran for respondent.
(1) Three things are necessary to the existence of dower: the marriage of the parties, the seizin of the husband, and the death of the husband. Washburn on Real Prop., p. 169. (2) The record of a deed is admissible in evidence when a proper foundation is laid. R. S. 1889, sec. 2428. And a certified copy is admissible in all cases where the record would be. (3) Proof that the defendant is in possession under the husband, directly or indirectly, is sufficient evidence of the husband's seizin. Gentry v. Garth, 10 Mo. loc. cit. 145. (4) Plaintiff was entitled to her dower according to the value of the land at the time of the assignment, less any increased value by reason of improvements. McClanahan v. Porter, 10 Mo. 746. (5) "The right of dower attaches whenever there is a seizin by the husband during the marriage, and unless it is relinquished by the wife in the manner prescribed by law, it becomes absolute at the husband's death. Grady v. McCorkle, 57 Mo. 174.
This is an action for assignment of dower in two hundred and five and one-half acres of land in Clinton county, brought in the circuit court of that county, and thence taken by change of venue to the circuit court of Ray county. From the judgment of the circuit court of Ray county assigning plaintiff dower in said land and for damages, the defendant appeals.
The common source of title is James Cazier, who died in the year 1891. The plaintiff and James Cazier were married in Kentucky on the twenty-seventh of May in the year 1839, and thereafter lived together as man and wife for several years and until the breaking out of the war with Mexico, when he enlisted as a soldier and thereafter never returned to his wife and his children by her born of the marriage, then living in the State of Illinois. They were never divorced. In 1849 when Cazier was next heard of he was living in Iowa with a woman whom he claimed to have married in Missouri about a year before that time, and whose name prior thereto was Elizabeth Oyler. Upon hearing that her husband was living near Council Bluffs, Iowa, the plaintiff, about the year 1851, with their children, went to his place in Iowa, but finding this condition of affairs returned with her children to the State of Illinois, where she has since continued to reside. In 1856, Cazier and wife number two moved to Missouri and he acquired title to part of the lands in controversy during that year; and to the remainder in the years 1857 and 1859, and thereafter remained in possession of the same until by mesne conveyances from him his title to the land passed to the defendant, under which he claims and is now in possession. After Cazier had conveyed the premises and in the year 1865, he left the State. During all the time he resided in Clinton county he lived with wife number two. She joined with him in the deeds of conveyance, and they conducted themselves in all respects as man and wife. She died in March, 1891. Cazier died in Idaho in October, 1891 and this suit was commenced on the nineteenth of July, 1893. By the judgment of the court sixty-seven and one-half acres of the land was assigned to the plaintiff as her dower, and damages for the detention thereof since the institution of the suit assessed at the sum of $ 165 was adjudged in her favor. The errors insisted upon in this court for...
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