Robinson v. Ware

Decision Date07 May 1888
Citation94 Mo. 678,8 S.W. 153
PartiesROBINSON v. WARE.
CourtMissouri Supreme Court

Appeal from circuit court, Audrain county; ELIJAH ROBINSON, Judge.

Action for assignment of dower by Maria Robinson against Joseph G. Ware. Judgment for defendant, and plaintiff appeals.

J. McD. Trimble, George Robertson, and Slaughter & Taylor, for appellant. T. B. Buckner and Pratt, McCrary & Ferry, for respondent.

BLACK, J.

This was an action for the assignment of dower, commenced in June, 1884. The plaintiff failed in the court below, on the ground that her action was barred by the statute of limitations. The facts are these: Benjamin Robinson, plaintiff's husband, died in April, 1867, seized in fee of the described premises. The administrator sold the land in 1869 for the payment of the debts of the deceased, under an order of the probate court, and the defendant became the purchaser. He has had adverse possession for more than 10 years before the commencement of this suit.

It becomes of some importance to determine, at the outset, whether this action is one for the recovery of real estate. The old writ of dower, unde nihil habet, and the writ of right of dower, were classed as real actions. Ang. Lim. (6th Ed.) § 367; Wood, Lim. § 273; Steph. Pl. (9th Amer. Ed.) 10. Our statute in respect of the assignment of dower provides, and for many years has provided, that "when any widow shall be entitled to dower in real estate, and she be deforced thereof, or cannot have it without suit, or if her dower be unfairly assigned, or not assigned within two years after the death of her husband, she may sue for and recover the same, with damages." The suit is to be brought against any person claiming an interest in the land, or being in possession, or who shall deforce her of her dower. The interlocutory judgment is that she be seized of her dower, the appointment of commissioners to set off the same, and that she recover the damages to be assessed; and, by the final judgment, she is awarded a writ of possession, and an execution for the damages. Sections 2206, 2211, 2214, 2215, Rev. St. 1879. Now, if the old writs, which it seems did not give the widow possession, were properly classed as real actions, then with much greater reason should our proceeding be denominated a real action; for it not only determines the right to dower, sets off the third part of the lands, but gives possession. The final judgment, besides determining the right and awarding damages, is equivalent to a judgment in an action of ejectment. It is sometimes said that an unassigned dower is a chose in action; but, upon the death of the husband, the inchoate interest becomes consummated, and her right to demand and enter upon the enjoyment of that interest commences. 1 Scrib. Dower. 618. Call it what we may, it is an interest in real estate; and the proceeding to have dower assigned is, in this state, a possessory action. It comes literally within the words, "an action for the recovery of lands, or for the recovery of the possession thereof." The sections of the Revised Statutes of 1879 concerning the limitations of actions, and having a direct bearing upon the questions of law at issue, are: Section 3219: "No action for the recovery of any lands, tenements, or hereditaments, or for the recovery of the possession thereof, shall be commenced, had, or maintained by any person, * * * unless it appear that the plaintiff, his ancestor, predecessor, grantor, or other person under whom he claims, was seized or possessed of the premises in question within ten years before the commencement of such action." Section 3228: "Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued." Section 3229: "Within ten years: First, * * *; third, actions for relief not herein otherwise provided for." Other sections follow, fixing a limitation of five, three, and two years for different classes of personal actions.

At first it would seem to follow, from what has been said, that this action is within section 3219. But it has been generally, though not always, held in the United States that the action for dower is not within those statutes, in respect of the limitation of real actions, which are modeled after the statutes of Henry VIII. and James I., as ours is. 2 Scrib. Dower, c. 20; Ang. Lim. (6th Ed.) 369; Wood, Lim. § 273. Hence it was held in Littleton v. Patterson, 32 Mo. 357, that an action for dower was not barred by the act of February 2, 1847, (Acts 1847, p. 94,) which, except as to the period of time required, is the same as section 3219. That case was decided, and doubtless had to be decided, without reference to subsequent legislation. The practice act, adopted in 1849, (Acts 1848-49, p. 73,) abolished all distinctions between actions at law and suits in equity, and declared that thereafter there should be in this state but one form of action, which is denominated a "civil action." The first section of the second article repealed certain sections of the Revised Statutes of 1845, concerning the limitation of personal actions, and substituted others. The second section declared that "civil actions" embraced within the article could only be commenced within the time prescribed in sections which follow, "except where, in special cases, a different limitation is prescribed by statute;" and the next section contains the catch-all clause, as it is called, namely, "third, actions for relief not herein otherwise provided for." As said in Hunter v. Hunter, 50 Mo. 455, this clause seems to have been made to cover equitable cases, as well as others not falling under any other part of the statute. This history of the legislation shows clearly that it was the policy of the legislature in 1849 to fix a period of limitation for all "civil actions." Dower is a civil action, and we believe such an action would have been held to be barred, in the case of Littleton v. Patterson, supra, either by the first section of the act of 1847, or this general clause in the act of 1849, had the court been called upon to consider the statutes as a whole; but the cause of action there appears to have accrued before the adoption of the act of 1849. Which of the sections would have been applied, is not material, at this time, in this case. These sections...

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25 cases
  • Falvey v. Hicks
    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ... ... Ketchum, 192 Mo. 15, 90 S. W. 350; Carr v. Barr, 294 Mo. 673, 243 S. W. 98; Case v. Sipes, 280 Mo. 110, 217 S. W. 306; Willis v. Robinson, 291 Mo. 650, 237 S. W. 1030; Wells v. Egger, 303 Mo. 26, 259 S. W. 437 ...         "`A stranger to the title may, of course, during the ... Brown v. Moore, 74 Mo. 633; Robinson v. Ware, 94 Mo. 678, 8 S. W. 153; Holmes v. Kring, 93 Mo. 452, 6 S. W. 347; Sherwood v. Baker, 105 Mo. 472, 16 S. W. 938, 24 Am. St. Rep. 399; Melton v ... ...
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    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ... ... 673; Hall v ... French, 165 Mo. 430; Mathews v. O'Donnell, ... 289 Mo. 235; Case v. Sipes, 280 Mo. 110; Willis ... v. Robinson, 291 Mo. 650. This suit was filed by the ... plaintiffs on August 25, 1921; the widow Connelly died August ... 22, 1912; the case was tried and ... never assigned, until the death of the widow. [ Brown v ... Moore, 74 Mo. 633; Robinson v. Ware, 94 Mo ... 678; Holmes v. Kring, 93 Mo. 452; Sherwood v ... Baker, [315 Mo. 459] 105 Mo. 472; Melton v ... Fitch, 125 Mo. 281; Carey v ... ...
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    • March 30, 1915
    ... ... Mo. 615. (2) The widow's unassigned dower interest in the ... premises in question is not barred by the Statutes of ... Limitation. Robinson v. Ware, 94 Mo. 678, 688; ... Sherwood v. Baker, 105 Mo. 477; Null v ... Howell, 111 Mo. 273; Harrison v. McReynolds, ... 183 Mo. 533; ... ...
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    • Iowa Supreme Court
    • July 11, 1906
    ... ... 668); Thompson v. McCorkle, 136 Ind ... 484 (34 N.E. 813, 36 N.E. 211, 43 Am. St. Rep. 334); ... Anderson v. Sterritt, 79 Ky. 499; Robinson v ... Ware, 94 Mo. 678 (8 S.W. 153); Care v. Keller, ... 77 Pa. 487; Winters v. DeTurk, 133 Pa. 359 (19 A ... 354, 7 L. R. A. 658); Moore v ... ...
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