Benoist v. Murrin

• Decision Date: 31 March 1871
• Citation: 47 Mo. 537
• Parties: CONDE L. BENOIST, Respondent, v. JAMES MURRIN et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 537

CONDE L. BENOIST, Respondent,

v.JAMES MURRIN et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Casselberry, for appellants.

The wife, before assignment of dower, has no right in her husband's land. Her right, until dower is assigned, is a mere chose in action, and therefore not such an estate in land as is contemplated by the statute for quieting titles. (McClannahan v. Porter, 10 Mo. 751; 4 Kent's Com. 61-2; Johnson v. Shields, 32 Me. 424; 1 Washb. Real Prop. 251-3.) Until dower is assigned the widow has no right of entry (1 Washb. Real Prop. 253), and therefore has no such right as will enable her to maintain ejectment or partition. (Pringle v. Grew, 5 Serg. & R. 536; Doe v. Nutt, 2 Car. & P. 430; Bradshaw v. Callaghan, 5 Johns. 80; Coles v. Coles, 15 Johns. 319.)

Dryden & Dryden, for respondent.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding under the statute (2 Wagn. Stat. 1022, § 53), instituted for the purpose of quieting the plaintiff's title. The defendants are summoned into court to show cause, if any they have, why they should not be required to bring an action to try their alleged title to the premises described in the petition.

Two of the defendants, Mr. and Mrs. Murrin, come in and show by their answer, in substance, that Mrs. Murrin was entitled to dower in said premises as the former wife and widow of the late Louis A. Benoist; that she has never either asserted or relinquished such alleged right, nor as yet made up her mind what to do in respect to it; and that she wishes to be left to the influence of “future results and events” in the determination of her action on that subject. The answer was demurred to and held insufficient. No further answer being filed, judgment was taken against the defendants by default. The defendants bring the cause here by appeal.

The judgment is sought to be reversed on various grounds, but chiefly for the reason that the dower interest set up in the answer is not, as the defendants insist, a “claim adverse” to the plaintiff's title, within the meaning of the statute under which this suit is prosecuted. The first question, therefore, respects the construction of the statute on that subject.

It must be admitted that the unassigned dower interest set out in the answer is neither a title nor an estate in the scientific sense of these terms. (1 Washb. 251-2). But the conflicting interest referred to in the statutes is spoken of not only as a “title,” but also as a “right,” a “claim,” as though every right, title and claim in conflict with the petitioner's title was intended to be included, whether the right or claim amounted to a technical title or not. The language of the statute is undoubtedly broad enough to embrace the dower interest mentioned in the defendant's answer. That at least is a claim, and a claim in opposition to the title of the petitioner. All that a petitioner is required to aver on this subject in bringing his suit is that he is creditably informed and believes that the defendant makes “some claim adverse” to the petitioner's title. If it turns out that the defendant is making some claim adverse to the petitioner's, is not the petitioner's case made out in respect...