C. M. Smith Brothers Land & Investment Company v. Phillips
| Decision Date | 23 July 1921 |
| Parties | C. M. SMITH BROTHERS LAND & INVESTMENT COMPANY, Appellant, v. MARTHA C. PHILLIPS et al |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court. -- Hon. Frank Kelly, Judge.
Affirmed.
R. L Ward and Russell & Joslyn for plaintiffs.
(1) Immediately upon the death of James J. Phillips on the 24th day of November, 1895, the land in controversy, which did not exceed in value the sum of fifteen hundred dollars, passed to and vested in his widow, Martha C. Phillips, and his children, Ollie, Florence, James, Thomas Milas, and Jessie who was yet unborn, and continued for their benefit until the youngest child attained its legal majority, and until the death of said widow, with the joint right of occupation until the children attained their majority and until the death or remarriage of the widow. Laws 1895, p. 186. (2) Under said law, the probate court having jurisdiction of the estate of the deceased housekeeper, was required, when necessary, to appoint three commissioners to set out such homestead to the person or persons entitled thereto. The commissioners appointed to set out such homestead were required, in cases where the right of dower existed, to set off such dower, but they were required first to set out the homestead, and if the interest of the widow in such homestead equal or exceed a one-third interest for and during her natural life in and to all of the real estate of which such housekeeper or head of the family shall have died seized, no dower could be assigned to such widow. The land in controversy being all which the deceased housekeeper owned at the time of his death, the widow's life estate or interest in the homestead was more than her dower. R. S. 1889, sec. 5440. (3) On the death of her husband, Martha C. Phillips became invested with three cognate rights in and to the premises: quarantine, dower and homestead. Phillips v. Presson, 172 Mo. 27. (4) The right of quarantine is a possessory right on which an action of ejectment may be maintained; is assignable and carries with it all the incidents which belong to it prior to the transfer. Stokes v. McAllister, 2 Mo. 163; Jones v. Manley, 58 Mo. 559; State v. Moore, 61 Mo 276; Brown v. Moore, 74 Mo. 633; Gentry v. Gentry, 122 Mo. 202; Fisher v. Siekman, 125 Mo. 165; Carey v. West, 139 Mo. 146; Phillips v. Presson, 172 Mo. 27; R. S. 1889, sec. 4514; R. S. 1919, sec. 316; Young v. Thrasher, 115 Mo. 222. (5) The remarriage of Martha C. Phillips on the 8th day of August, 1903, did not extinguish her dower and quarantine rights. Chrisman v. Linderman, 202 Mo. 605; Westmeyer v. Gallenkamp, 154 Mo. 28. (6) Neither Martha C. Phillips nor her subsequent grantees could hold possession under the quarantine statute nor have dower assigned, or set-off as a separate entity from the homestead. Phillips v. Presson, 172 Mo. 27; Chrisman v. Linderman, 202 Mo. 621. (7) The homestead statute and the dower statute are not antagonistic to each other, but must be construed together. No provision in either should perish by construction, unless there is no reasonable escape from such construction. Chrisman v. Linderman, 202 Mo. 621. (8) The Smiths, plaintiff's grantors, commenced their action on the 4th day of October, 1899, to assert their rights under the quarantine law when they filed their answer in the ejectment suit instituted by Martha C. Phillips, on behalf of her minor children, to recover possession of the premises in controversy. This was the commencement of an action for the recovery of dower or any interest therein with the meaning of Sec. 391, R. S. 1909, Phillips v. Presson, 172 Mo. 24. (9) Dower in the land in controversy and all the rights incident thereto were covered up or merged, as it were, in the homestead, and could not be enforced by any action known to the law until after the expiration of the homestead estate. Chrisman v. Linderman, 202 Mo. 621. (10) The defendants, Martha C. Phillips and Thomas Milas Phillips, were estopped from pleading the ten-year Statute of Limitations after they instituted their suit in ejectment and recovered possession of the premises in controversy. McFarland v. McFarland, 211 S.W. 23. (11) The right of Martha C. Phillips to have her deed to the Smith brothers set aside on the ground of fraud was barred by the Statute of Limitations long prior to the date of the institution of this suit. R. S. 1919, sec. 1305; Turnmeyer v. Claybrook, 204 S.W. 178.
Haw & Brown for defendants.
(1) In so far as the replies of appellant to the separate answers of respondents apply to the plea that plaintiff's cause of action is barred, said replies merely deny "each and every allegation, averment and statement of new matter" in said answers contained. Such denials amount to nothing more than a confession of the matter alleged in the answer and do not present any issues to be decided. R. S. 1919, secs. 1232, 1235, 1237 and 1256; Holt v. Hanley, 245 Mo. 359; Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 279; Boles v. Bennington, 136 Mo. 522; Young v. Schofield, 132 Mo. 650, 661; Snyder v. Free, 114 Mo. 360, 367; Brickell v. Williams, 180 Mo.App. 572; Betz v. Telephone Co., 121 Mo.App. 473. (2) The right of dower is older than that of homestead, the latter being strictly of American origin while the origin of the former is of such antiquity that is is involved in much doubt and obscurity. 21 Cyc. 459, note 5; 19 C. J. 458, sec. 4 and 5. Dower is an institution of the State; is held sacred and has been strongly fortified against invasion; is a legal, and equitable, and a moral right favored in a high degree by law. Courts are vigilant and astute in preserving dower, and it was therefore subject to award in 1903 when the widow lost her homestead by marriage. 19 C. J. 400, sec. 10; Jordan v. Rudluff, 264 Mo. 129; Donaldson v. Donaldson, 249 Mo. 228, 245; Holt v. Hanley, 245 Mo. 352, 361; Chrisman v. Linderman, 202 Mo. 605, 613-622. Even when the interest of the widow in the homestead is greater than dower, the latter is not extinguished by, nor merged in homestead, but, while the widow is entitled to both, the right to have dower assigned and to enjoy it separate from the homestead does not exist. As soon, however, as homestead is lost by marriage there arises a reason for having dower assigned, and the right to do so reappears -- "suspended during widowhood it revives again in re-marriage." Jordan v. Rudluff, 264 Mo. 129, 137; Chrisman v. Linderman, 202 Mo. 605, 619-624. The right, therefore, to have dower assigned in this case, revived, at the latest, when the widow of J. J. Phillips married William Taylor, in 1903, and as the petition in this cause was not filed until August 16, 1917, the action is barred by the dower Statute of Limitations. R. S. 1919, sec. 359; R. S. 1889, sec. 4558; Edmonds v. Scharff, 213 S.W. 823; McFarland v. McFarland, 211 S.W. 23; Belfast Inv. Co. v. Curry, 264 Mo. 483, 494. (3) While the authorities cited by appellant in its brief do seem to hold that ejectment may be maintained to recover possession of the mansion house, etc., under the right of quarantine, yet none of the cases cited considered the provisions of the dower statutes in reaching that conclusion. Until the assignment of dower the widow has no right under her claim of dower to enter and occupy any portion of her husband's estate unless such right is given by statute. At common law the right of quarantine was the right to remain in the mansion house for forty days after the husband's death during which time dower was to be assigned to her. 19 C. J. pp. 531 and 532, sec. 205. Statutes changing the common law are not to be understood as affecting any change in the law beyond that which is expressed or necessarily implied from the language used. 36 Cyc. 1145 (b). By the dower statutes in force at the time of the death of J. J. Phillips the Legislature seems to have intended to extend the time during which the widow might enjoy the mansion house and messuages thereto belonging to two years and to require that at the end of that time, if not before, her dower should be assigned and set-off. R. S. 1889, secs. 4533, 4534, 4536-4542. (4) Appellant did not plead estoppel and cannot, therefore, avail itself thereof. Taylor v. Edmonston, 210 Mo. 411, 428; Golden v. Tyer, 180 Mo. 196, 204; Casler v. Gray, 159 Mo. 588, 595. This case contains none of the elements of estoppel. Gentry v. Gentry, 122 Mo. 202, 221. It is the policy of the law to guard against estoppels, because estoppels may exclude the truth. Osburn v. Court of Honor, 152 Mo.App. 652, 661.
BROWN, C. Ragland and Small, CC., concur; James T. Blair, J., concurs in the result.
Ejectment to recover eighty acres of land in Mississippi County described as the east half of the northwest quarter of Section Nine, Township Twenty-five of Range Fifteen. The defendants are Martha C. Phillips and Thomas Milas Phillips. The common source of title is James J. 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 co-defendant 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 two hundred 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...
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