Cazier v. Hinchey

• Decision Date: 08 March 1898
• Citation: 143 Mo. 203,44 S.W. 1052
• Parties: CAZIER v. HINCHEY.
• Court: Missouri Supreme Court

44 S.W. 1052

143 Mo. 203

CAZIER v. HINCHEY.

Supreme Court of Missouri, Division No. 1.

March 8, 1898.

DOWER — ASSIGNMENT — ESTOPPEL — SECONDARY EVIDENCE — HEARSAY — APPEAL — PRESUMPTIONS.

1. Where a witness stated that all the information he had in regard to the contents of an instrument was derived from what another had told him, his testimony as to such contents was properly excluded as hearsay.

2. In an action for assignment of dower, after evidence has been introduced tending to prove that the original deed in plaintiff's husband's chain of title had never been in her possession, certified copies of the record of such deeds are admissible to prove the husband's title.

3. Where several parcels of land in which a widow has a right of dower are all held by the same person, it is proper to assign her dower out of only one of the parcels.

4. In an action for assignment of dower, where the abstract on appeal is silent, it will be presumed that the court before whom the case was tried without a jury took into consideration the question of taxes in assigning the dower and assessing damages.

5. Where a man left his wife, and, without being divorced from her, lived with another woman as his wife, for many years, the wife, by consenting thereto, was not estopped, on his death, from asserting her right of dower in his property.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Action by Juliette C. Cazier against Patrick Hinchey. Judgment for plaintiff. Defendant appeals. Affirmed.

F. B. Ellis, for appellant. H. T. Herndon and W. G. Cochran, for respondent.

BRACE, P. J.

This is an action for assignment of dower in 205½ acres of land in Clinton county, brought in the circuit court of that county, and thence taken by change of venue to the circuit court of Ray county. From the judgment of the circuit court of Ray county assigning plaintiff dower in said land, and for damages, the defendant appeals.

The common source of title is James Cazier, who died in the year 1891. The plaintiff and James Cazier were married in Kentucky on the 27th of May in the year 1839, and thereafter lived together as man and wife for several years, and until the breaking out of the war with Mexico, when he enlisted as a soldier, and thereafter never returned to his wife and his children by her born of the marriage, then living in the state of Illinois. They were never divorced. In 1849, when Cazier was next heard of, he was living in Iowa, with a woman whom he claimed to have married in Missouri about a year before that time, and whose name prior thereto was Elizabeth Oyler. Upon hearing that her husband was living near Council Bluffs, Iowa, the plaintiff, about the year 1851, with their children, went to his place in Iowa, but, finding this condition of affairs, returned with her children to the state of Illinois, where she has since continued to reside. In 1856, Cazier and wife No. 2 moved to Missouri, and he acquired title to part of the lands in controversy during that year, and to the remainder in the years 1857 and 1859, and thereafter remained in possession of the same until by mesne conveyances from him his title to the land passed to the defendant, under which he claims, and is now in possession. After Cazier had conveyed the premises, and in the year 1865, he left the state. During all the time he resided in Clinton county he lived with wife No. 2. She joined with him in the deeds of conveyance, and they conducted themselves in all respects as man and wife. She died in March, 1891. Cazier died in Idaho in October, 1891,...