Bartlett v. Tinsley

• Citation: 175 Mo. 319,75 S.W. 143
• Parties: BARTLETT v. TINSLEY.
• Decision Date: 09 June 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 143

175 Mo. 319

BARTLETT v. TINSLEY.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

DOWER—RIGHT TO DOWER—CONVEYANCE BY HUSBAND ALONE—POSSESSION BY HUSBAND—NECESSITY.

1. Rev. St. 1889, § 8839, providing that lineal and collateral warranties, with all their incidents, are abolished, but the heirs and devisees of every person having made any covenant shall be answerable thereon to the extent of the lands descended or devised to them in the cases and in the manner provided by law, and devisees shall be answerable to the same extent as provided by law in case of heirs, does not estop a widow from claiming dower in lands conveyed, during the marriage, by her husband alone, until the claims for damages for the breach of the covenant of warranty contained in the deed are satisfied, especially in view of section 4525, declaring that no deed executed by a husband without the assent of his wife, evidenced by her acknowledgment, shall prejudice the dower rights of the wife.

2. Where a deed conveying land is absolute on its face, the right of the widow of the grantee to dower cannot be defeated by parol proof tending to establish a trust in favor of the grantor.

3. Under the express provisions of Rev. St. 1889, § 4535, a widow is entitled to dower though there may have been no actual possession of the land by the husband.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Harriet Bartlett against Thomas L. Tinsley. From a judgment for plaintiff, defendant appeals. Affirmed.

Ball & Sparrow and N. W. Morrow, for appellant. J. H. Blair & Son, for respondent.

Statement of Case.

FOX, J.

This was a suit instituted by Harriet Bartlett, widow of William H. Bartlett, deceased, for the assignment of dower in lots 1, 2, 5, and 6 in block 19 in William Luce's addition to the city of Louisiana, Pike county, Mo. It was instituted on the ____ day of May, 1898, and tried in December, 1898. There was judgment for plaintiff, a motion for a new trial, arrest of judgment, and appeal duly perfected.

The lots in question are a part of a tract of 70 acres conveyed to William H. Bartlett, husband of respondent, by deed from his mother, Elizabeth Mann, and his stepfather, Marshall Mann, dated April 22, 1822, the consideration being parental love and affection. On the 4th day of February, 1830, respondent was married to the said William H. Bartlett, and on the 18th day of March, 1830, the said Bartlett executed a power of attorney, in which he was not joined by respondent, vesting his attorney with full power and authority to sell and convey the said tract of land. The same was sold under the power given, and a deed executed to one Edward Charless on the 15th day of November, 1830. The deed contains the following covenant of warranty: "And I, the said Bartlett, doth further covenant and agree for himself, his heirs, executors and administrators to warrant and defend said title in the said Edward Charless free from all claim or claims, or by any person in, through, or by him the said Bartlett, or in, through or by any other person or persons whosoever, or by any nature whatever in the premises fully and completely." The appellant claims title through mesne conveyances from Charless, and about which there is no controversy. W. H. Bartlett, husband of plaintiff, died at Yonkers, N. Y., on the 11th day of February, 1893, leaving a large estate. Plaintiff testifies that she knew about the execution of the power of attorney by her husband to Mann shortly after their marriage; that she was not asked to sign it. It sufficiently appears from the pleadings and evidence in the cause that the property in question is situated in Luce's addition to the city of Louisiana, embracing the resident portion of said city.

The letter of Mann, requesting power of attorney from W. H. Bartlett, was introduced in evidence. It is as follows:

                          "Louisiana, February 20th, 1830
                

"Dear William: A short time after I wrote to you I tuck a notion to gow to Tennessee, and just got home last nite, and I received your favor of the 27th December, whitch gave me great pleashur to hear from you. When I was in Tennessee I formed an acquaintance with a lady, an old made about thirty years of age. I set in to coting of her and got her consent to marry, and I am to return back and marry her in May next. She is a verray fine woman, strict methods and has about 12 or 15 slaves and sum money. She is not as well accomplished as I woold wish; I woold have married hur when I was there but my embarresments kept me from it and if you will doo me the favor to let me sell this peas of land that you have hear it will cler me of my embarresments. I can get a good price for it and I will do more than double reward you for your goodness in so doing. I can sell my property hear in town, but I do not wish to sell it for I wish to have a home to gow too when I marry, or I can sell Tom, but to sell him is like parting with a child; and if you conclude to let me sell the lands hears is the Number and description of the land enclosed in the within letter. Yours and your ladys company would be verray gratifying to me if I could have the pleashur of enjoying that happiness. Sanders got a fall from a horse about two weaks a gow and it had liked to killed him. He got hold of your letter that you wrote to me and he accused me of writing to you but I denied it. I wish you to not let him now anything about my writing to you consearning his conduct, him and me will start in a few days on board of ower boat to Fever river. I wish to get out of my embarresments before I marry for I doo not wish to deseave the person that I am going to marry as she is not acquainted with my circumstances all tho she is very well acquainted with my fathers family for she lives about two miles from them. Pheby and Sam Shaw sends their best respects to you and Mrs. Bartlett. Sanders and my best love to Mrs. Bartlett nothing more at present but remains yours

                sincerely,                    M. Mann
                

"W. H. C. Bartlett.

"N. B. Pleas send me a power of attorney to sell the land if you can grant me the favor that I requested of you and I will give you any security what you may request.

                  "W. H. C. B.                M. Mann."
                

The power of attorney was executed by Bartlett as requested; but his wife, now the respondent, did not join in such instrument. Marshall Mann, in pursuance of the power of attorney executed and delivered to him, conveyed the land to one Charless. There was some testimony tending to show that Bartlett had never been in the actual possession of the land in which the dower of the plaintiff is sought to be admeasured, and that neither Marshall Mann nor Bartlett had any property at the time of the execution of the deeds introduced in evidence, and that Mann was financially embarrassed. It is disclosed by the record that a jury had been impaneled to try this case, and at the close of the evidence, by agreement of parties, the jury was discharged, and the cause submitted to the court.

Appellant prayed the court to give instructions as follows: "The court instructs the jury that under the pleadings and all the testimony given in evidence in the case the verdict should be for the defendant. The court instructs the jury that if you believe from the evidence in the case that the conveyance from Marshall Mann and wife of April 22, 1822, to W. H. Bartlett, read in evidence in this case, was made by said Mann not for the purpose of conveying the ownership of said property to said Bartlett, but for the purpose of having said Bartlett hold the title for him, the said Marshall Mann, and that the same was so held by said Bartlett until the execution by him of the power of attorney, read in evidence in this case, of date November 15, 1830, from said Bartlett to said Mann, and that the same was executed by him for the purpose of reinvesting said Mann with the title to said land for his own use and benefit, or for the purpose of permitting him to dispose of the same for his own use and benefit, in accordance with the original purpose of the conveyance of said land from Mann to Bartlett as hereinafter stated, then the verdict should be for defendant." Which instructions the court refused to give. To which ruling and action of the court defendant duly excepted at the time and saved his exceptions.

Upon the submission of the cause to the court, it made the following finding and entered the decree as herein quoted:

"Thursday, December the 15th, 1898. Harriet Bartlett, Plaintiff, v. Thomas L. Tinsley, Defendant. Suit for the Assignment of Dower. Now at this day come the parties by their counsel, and, a jury having been waived by said parties all and singular, the matters are submitted to the court, which, having been seen and heard, the court doth find that the plaintiff, Harriet Bartlett, on the 4th day of February, A. D. 1830, married William H. Bartlett at the city of Newport, in the state of Rhode Island; that she lived with him thereafter as his wife until the time of his death; that the said William H. Bartlett died on the 11th day of February, A. D. 1893, in the city of Yonkers, county of Westchester, state of New York. The court further finds that during the existence of said marriage William H. Bartlett was seised and possessed in fee simple of the following real estate, situated in the county of Pike and state of Missouri, to wit: Beginning at a stake on the west boundary line of the county commissioner's land, from which stake a white oak 24 inches in diameter bears north, 89 degrees east, 52 links, and a white oak 18 inches in diameter bears north, 75 degrees west, 47 links; thence runs west 35 chains and 70 links to the west boundary line of section number 18 at a stake from which a white oak 14 inches in diameter bears north, 62 degrees east, 5 links, and a dogwood 6 inches in diameter bears south, 6 degrees east, 13 links; thence south 14 chains and 70 links with said...