C. M. Smith Bros. Land & Investment Co. v. Phillips

• Decision Date: 11 July 1921
• Docket Number: No. 21516.,21516.
• Citation: 289 Mo. 579,233 S.W. 413
• Court: Missouri Supreme Court
• Parties: C. M. SMITH BROS. LAND & INVESTMENT CO. v. PHILLIPS et al.

233 S.W. 413

289 Mo. 579

C. M. SMITH BROS. LAND & INVESTMENT CO. v. PHILLIPS et al.

No. 21516.

Supreme Court of Missouri, Division No. 1.

July 11, 1921.

Motion for Rehearing Denied July 23, 1921.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Ejectment by the C. M. Smith Bros. Land & Investment Company against Martha C. Phillips and others. From a judgment denying plaintiff the relief sought, plaintiff appeals. Affirmed.

See, also, 233 S. W. 418.

R. L. Ward, of Caruthersville, and Russell & Joslyn, of Charleston, for appellant.

Haw & Brown, of Charleston, for respondents.

BROWN, C.

Ejectment to recover 80 acres of land in said county, described as the east half of the northwest quarter of section 9, township 25, of range 15. The defendants are Martha C. Phillips and Thomas Miles Phillips. The common source of title is James 3. Phillips, who died intestate, seized of the land, while occupying it as his home with his family, consisting of the defendant Martha C., his wife, and five minor children, of whom her codefendant is one. Another child was born shortly after his death. The plaintiff claims through a deed dated April 8, 1898, and recorded the next day, whereby Mrs. Phillips conveyed what she designated as her life interest in the land in controversy, together with an undivided one-eleventh interest in 200 additional acres, to James E. Smith, William R. Smith, and Charles M. Smith, the organizers and stockholders of the plaintiff corporation, to which they afterward conveyed it. The consideration named in this deed was $2,000. It is admitted that the land in controversy was not worth more than $1,500 at the time of the death of James J. Phillips.

The defendants filed separate answers, both denying generally the allegations of the petition, and pleading the general statutes of limitations of 10 years. Thomas Miles also pleaded the special statute of limitations of 10 years with reference to proceedings for the recovery of dower. Martha C. denied this, and pleaded that the deed of April 8, 1898, under which plaintiff claims, was obtained from her by fraud on the part of the grantees, and asked that it be canceled and set aside. The new matter in both answers was denied by replication. Reply to the answer of Martha C. also pleaded the statute of limitations to the equitable relief asked by her.

The defendant Martha C. Phillips was married to one Taylor August 8, 1903. They continued to live together as husband and wife until April 5, 1907, when she obtained a divorce from him. Jessie, the youngest child of James J. and Martha C. Phillips, was the last to reach her majority, which occurred in 1914.

The three Smith brothers entered upon the land under their deed from Martha, and the plaintiff corporation, under its deed from them, continued in possession. On August 21, 1899, Martha C., the widow, being duly qualified as guardian of her children, brought ejectment in their name against the Smith brothers and one Presson, their tenant, and recovered judgment therein, which was affirmed by this court. Phillips v. Presson, 172 Mo. 24, 72 S. W. 501. She immediately entered with her children under the judgment, and she and her son and codefendant, Thomas Miles Phillips, have remained on the land ever since.

No dower has ever been admeasured or assigned to Mrs. Phillips or to any person representing her dower estate; nor has any proceeding been had to set off the homestead to the widow or children, unless that was the effect of the ejectment determined in this court in 1902.

On August 24, 1899, Mrs. Phillips brought suit in equity to cancel her deed to the Smith brothers, which was dismissed at the following October term. The judgment was for the defendants on the ejectment issue, from which the plaintiff has prosecuted this appeal. The court also, by the same judgment, found the issue tendered by the cross-petition of Mrs. Phillips for the plaintiff, and refused the equitable relief asked, from which she has appealed. These appeals have been separately docketed and argued in this court, and are therefore separately considered.

1. The only question arising upon this appeal is whether by the deed of Mrs. Phillips to the Smith brothers, dated August 8, 1898, and their deed to the plaintiff corporation, the latter had, on August 16, 1917, the date of the beginning of this action, any possessory interest in the land, which it might recover thereby. The converse of the same proposition is whether, but for that conveyance, Mrs. Phillips, the grantor, would now have any possessory interest in the land recoverable in any form of action she might bring. The land was the homestead of her deceased husband. In 1895 she and her six children were, by his death, left on the land, and it was then their family homestead. By virtue of this statute a freehold estate to the whole immediately vested in her under the Homestead Act of 1895 (R. S. 1899, § 3620), subject to be defeated by her remarriage, and also subject to the "joint right of occupation" by the children during their minority. This being the only land of which he died seized, and not exceeding in value the sum of $1,500, the homestead estate vested in herself and children included all the dower to which she could in any possible event be entitled, unless she should remarry. In that event her interest in the homestead would cease by the terms of the act which created it.

The appellant's sole claim of title is founded upon the deed from the widow made in April, 1898, purporting to convey her life interest. We will assume that through this deed it became clothed with all her interest in the homestead, and her alternative right or dower should she remarry, and also, in that event, her right to quarantine until dower should be admeasured and assigned to her. Chrisman v. Linderman, 202 Mo. 605, 100 S. W. 1090, 10 L. R. A. (N. S.) 1205, 119 Am. St. Rep. 822. This deed gave, so far as she was concerned, an immediate possessory right jointly with her children, and immediately upon its execution the grantees made an arrangement with her by which she not only vacated the homestead herself, but took her children with her to a farm in New Madrid county, owned by the grantees, who entered upon the homestead themselves, and remained in exclusive possession thereof by themselves, their grantee the plaintiff corporation, and its tenant until ousted by the children in pursuance of the judgment of this court in Phillips v. Presson et al., 172 Mo. 24, 72 S. W. 501. It thus happened that on August 8, 1903, while the minor children were, by their mother, duly qualified as their guardian, in possession, the homestead title was extinguished by the marriage of Mrs. Phillips. The question thus presented is whether this plaintiff, upon the title acquired through the deed of Mrs. Phillips to the Smith brothers, being out of possession, are now entitled to recover the possession of the land or any interest therein in this suit. It does not claim the homestead interest vested in Mrs. Phillips by the death of her husband, but plants itself upon the proposition that by her remarriage in 1903 she would, but for her conveyances to the Smith brothers, have become seized of the right to have dower assigned to her and that this right was vested in plaintiff through her deed.

That the right of the widow to dower is assignable by deed after the death of the husband is the settled law of this state. Chrisman v. Linderman, supra; Jordan v. Rudulff, 264 Mo. 129, 174 S. W. 806. In those cases it was held, in substance, that, notwithstanding the fact that by the provisions of the Homestead Act of 1895 the widow might forfeit her homestead by remarriage, her rights of quarantine and dower remained unaffected by the intervention of the homestead estate. In the Jordan Case we held that the assignment of the homestead under the act of 1895—

"carried with it the primary right of possession, so that if the homestead exceeded in extent the amount of land to which she would be entitled as dower in the absence of a homestead right, nothing was left to be assigned as dower unless and until a subsequent marriage should divest her homestead estate with its right to the possession of the whole." 264 Mo. 137, 174 S. W. 808.

In that case the heirs had, after the death of the husband and before the remarriage of the widow, brought a suit in partition to which she was made a party, and in which the homestead was assigned to her to an extent greater than the amount to which, upon her subsequent remarriage, she was entitled as dower. After her remarriage the heirs, who were children and grandchildren of the deceased husband, entered upon the homestead, deforcing her, as she alleged, of her dower, and the action then before us was instituted to recover it out of the land included in the homestead, and to have damages for the deforcement. In sustaining her right to the remedy we also held that, as a party to the partition, she had been entitled to have her interest ascertained and declared by the court the same as would any other party to the proceeding having a contingent interest that might at some time develop into a possessory right, and, her homestead having been already set out in the partition suit, and adjudicated to be greater in extent than her dower, she was entitled by statute to...