Blevins v. Smith

• Decision Date: 31 March 1891
• Citation: 104 Mo. 583,16 S.W. 213
• Parties: BLEVINS et al. v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

16 S.W. 213

104 Mo. 583

BLEVINS et al. v. SMITH.¹

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

COVENANTS OF WARRANTY — INCHOATE DOWER — DELINQUENT TAX-SALE.

1. Though the inchoate right of dower is an incumbrance which will amount to a breach of a covenant of warranty, yet because of its contingent nature it is not susceptible of computation, and nominal damages only can be recovered in an action thereon.

2. The proceedings for the collection of delinquent taxes by suit provided in Rev. St. Mo. 1879, c. 145, art. 6, which authorizes a judgment and execution thereon to sell the right, title, and interest of the defendant who owned the land, is not such a proceeding in rem as can affect the inchoate right of dower of the wife of the owner, since by Rev. St. Mo. 1879, § 2197, (§ 4525, Rev. St. 1889,) it is provided that "no laches, default, covin, or crime of the husband shall prejudice" the dower rights of the wife.

THOMAS, J., dissenting.

Appeal from circuit court, Johnson county; CHARLES W. SLOAN, Judge.

S. P. Sparks, for appellant. A. B. Logan and W. W. Wood, for respondents.

GANTT, P. J.

This is an action on a covenant of warranty, made by appellant to the respondent Mrs. Sarah C. Blevins. The land conveyed is the S. ½ of S. E. ¼, section 6, township 46, range 25, Johnson county, Mo. The evidence showed title in appellant, Smith, at the date of conveyance to respondent, except an outstanding inchoate right of dower in Mrs. Mary E. Collier, the wife of Daniel Collier. Appellant deduced his title from Daniel Collier by virtue of a tax-sale and deed under the act of 1877. It was admitted that Daniel Collier was still alive at the time of the commencement of the suit. After respondent obtained her deed from appellant, she attempted to mortgage the land, and failed because of this outstanding inchoate dower right in Mrs. Collier. She thereupon purchased this right for $150, and brought this suit against appellant for that amount. Appellant assigns two grounds for reversal, — one, that the court erred in permitting respondent to recover more than nominal damages for the breach of the covenant by reason of the inchoate dower of Mrs. Collier, remaining outstanding; and, secondly, that the court erred in not holding that the tax-sale and deed conveyed the land absolutely, and by it Mrs. Collier's inchoate right of dower was entirely barred, and, of course, could constitute no incumbrance.

We all agree that the first contention of appellant must be sustained. While an inchoate right of dower is an incumbrance, as it is a contingency founded upon a contingency, it is not susceptible of computation by any definite rule; hence the practice has been adopted in this state to allow only nominal damages until the dower becomes consummate. Walker v. Deaver, 79 Mo. 664.

2. In regard to the second assignment. We think the court committed no error in holding that the tax proceedings did not divest Mrs. Collier's dower right. We shall not attempt to discuss the power of the legislature to collect taxes. We think it sufficient for the case in hand to ascertain, if we can, what the legislature has determined shall be the policy of the state. In the first place, we have by statute adopted the common law in regard to dower. Lord Coke says: "There be three things highly favored in law, — life, liberty, and dower." Co. Litt. Chief Justice McKEAN, in Kennedy v. Nedrow, 1 Dall. 415 asserts that "dower is a legal, equitable, and moral right, favored in a high degree by the law, and, next to life and liberty, held sacred." Strong as these terms are, they are strengthened by our statute. Section 4525: "No act, deed, or conveyance, executed or performed by the husband without the assent of the wife, evidenced by her acknowledgment thereof in the manner required by law to pass the estate of married women, and no judgment or decree confessed by or recovered against him, and no laches, default, covin, or crime of the husband, shall prejudice the right and interest of the wife, provided in the foregoing sections of this chapter;" that is to say, the sections securing the widow her common-law and statutory dower. Now, at common law, and by our statute reaffirming it, "the right of dower attaches whenever there is a seisin by the husband, during the marriage, of an estate of inheritance; and, unless it is relinquished by the wife in the manner prescribed by law, it becomes absolute at the husband's death." "It is a right in law fixed from the moment the facts of marriage and seisin concur, and becomes a title paramount to that of any person claiming under the husband by subsequent act." Grady v. McCorkle, 57 Mo. 172. This, then, is the character of the estate that is to be divested by this new construction of the statute. It is conceded that our statute requires "the owner" to be made a party before his or her interest in the lands can be affected by a tax proceeding under our act of 1877, and this section has been uniformly construed so that cestuis que trustent, mortgagees, remaindermen, and incumbrancers, who are not made parties, are not affected by these suits. Stafford v. Fizer, 82 Mo. 393; Corrigan v. Bell, 73 Mo. 53; Graves v. Ewart, 99 Mo. 13, 11 S. W. Rep. 971. No lawyer will question that inchoate dower is an incumbrance. But it is sought to sustain this new doctrine on the ground that our tax proceeding, beginning with the assessment, is a proceeding strictly in rem, and we may remark here that only by sustaining this position can this new rule be maintained. Beginning with Abbott v. Lindenbower, 42 Mo. 162, under a statute requiring the lands in all cases to be assessed to the person appearing to be the owner at the time of assessment, this court said: "It is unnecessary for us to say further here what might be the effect of this last clause in any cases; but we may go so far as to declare now that an assessment in the name of a person who neither was, nor ever had been, the owner of the property, would be an utterly void assessment." Our present statute requires the land to be listed and assessed in the name of the owner, if known. Under this statute, in Gitchell v. Kreidler, 84 Mo. 472, Judge BLACK, speaking for the whole court, says: "While the judgment is against the property, and not personal, still the tax is assessed against the owner, if known. The law looks to him for payment of the tax. Such a proceeding cannot be said to be strictly in rem." Black w. Tax-Titles, 630.

It will serve no good purpose to cite authorities to the same effect. This has been the accepted construction of our tax-laws for many years. Were it a proceeding strictly in rem, there would be no such thing as collecting the tax on real estate out of personal property, which it is conceded may be done. Indeed, the whole system is based on the idea that it is the duty of the husband to pay the taxes on his land; and a failure to pay the taxes is a default on his part. The wife is under no obligation to pay the tax. She does not own the fee; she does not reap the usufruct. Certainly no system, based upon justice, would exact of her tribute on property she might never enjoy, and rob her of her dower for failure to pay a tax she did not owe. If, then, taxes become delinquent, whose default is it? Not the wife's, certainly.

But it is said that, because there can be no personal judgment for taxes, therefore section 2197, Rev. St. 1879, (section 4525, Rev. St. 1889,) cannot be invoked. It would be difficult to conceive of a statute that would protect a wife's dower, if this is not sufficient. But we think this construction of this section too narrow. The injury is not confined to "judgment." The statute says, in addition to "judgments or decrees confessed or suffered," "no laches, default, covin, or crime of the husband shall prejudice the rights of the wife." Is it not laches in a citizen to neglect or refuse to pay his taxes? Is not the word "delinquent," used throughout the statute, a synonym for "laches" and "default?" And could there be a sale of the land, and a divestiture of the wife's dower, but for this delinquency on his part? The proposition is too clear for argument.

But if it is held that this section does not protect the wife's dower against the laches and default of the husband, we will have an anomalous state of affairs. A husband cannot, by deed or mortgage, the most solemn and praiseworthy, for the most valuable consideration, alien or destroy her dower right. No judgment against him, willing or unwilling, can affect her dower, — no fraud, covin, or crime; and yet he can suffer this new "fine and recovery," and successfully bar her dower, by simply refusing to pay his taxes, and let the land sell; and thus a result is reached, by this simple device, that could not be compassed by the most skillful conveyancer. We cannot believe the legislature intended such result. On the contrary, the whole scope of the tax-act clearly shows that the tax-law of 1877 (Rev. St. 1879, c. 145, art. 6) was designed to furnish a method for collecting taxes, in which notice was given to the delinquent of the amount of his taxes, and a day in court, if erroneous, to show the error. When the judgment is entered, an execution issues just as on other judgments, and it is intended to convey the right, title, and interest of the defendant who owned the land, and whose duty it was to pay the taxes. Says Judge BLACK: "We have repeatedly held that the purchaser at these sales acquires, and acquires only, the title and interest of the parties who are made defendants." Graves v. Ewart, 99 Mo. 13, 11 S. W. Rep. 971; Powell v. Greenstreet, 95 Mo. 14, 8 S. W. Rep. 176. An ordinary execution sale conveys to the purchaser all the right, title, and interest of the defendant in execution, but it has no effect upon the inchoate dower of the wife. It was clearly the intention of the legislature to give the same effect to a tax-deed, under regular and...