Chrisman v. Linderman
| Decision Date | 28 March 1907 |
| Citation | 100 S.W. 1090,202 Mo. 605 |
| Parties | CHRISMAN v. LINDERMAN et al., Appellants |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed.
N. A Franklin for appellants.
A widow who remarries does not lose dower in her former husband's lands. West v. McMullen, 112 Mo. 405; Westmyer v. Gallenkamp, 154 Mo. 28. But does a widow who remarries thereby lose and forfeit dower in lands of her former husband which was his homestead, and the only lands he possessed? A widow is endowed with the one-third part of all the lands whereof her husband died seized and possessed of an estate of inheritance, and the husband can sell his homestead subject to his wife's inchoate right of dower. R. S 1899, secs. 2933, 2935, 2936; Casteel v. Potter, 75 S.W. 597; Gladney v. Sydnor, 172 Mo. 318; Phillips v. Presson, 172 Mo. 24. Take a case like that of Gladney v. Sydnor, 172 Mo. 318, where it is specifically held that, under the homestead law of this State as amended in 1895, a homesteader has a vested estate in his homestead property, and can sell the same subject to his wife's inchoate right to dower; if the husband by his deed can defeat both homestead and dower, then his widow is left in a worse condition than if no homestead law had ever been passed by the Legislature. Can it be that the Legislature by the homestead law of 1895 intended to defeat the widow's rights both to her homestead and dower at the same time? If the construction put on the pleadings by respondent be sound, then that very thing is accomplished, if the homesteader's widow remarries. The last case cited specifically decided that the widow has the inchoate right to dower in her husband's homestead; if that right is not complete on the death of the homesteader, when does it become consummate? In the case of Phillips v. Presson, supra, the same thing is decided in the same way. In that case it is held (citing statutes) that a widow who had deeded the land had three cognate rights thereto, to-wit: quarantine, homestead and dower. It can surely make no difference that the homestead right of the minor children was stronger than the dower rights.
Higbee & Mills for respondent.
The widow took the homestead, the entire homestead in this case, during her life or widowhood. If the homestead equal or exceed one-third of the real estate, the widow has no dower. Burgess v. Bowles, 99 Mo. 547; Poland v. Vesper, 67 Mo. 727. Dower becomes consummate and is assigned according to the law in force at the husband's death. Carey v. West, 139 Mo. 174; Broyles v. Cox, 153 Mo. 251. "The object of the law was to secure a home for the widow." To insure her support the law gave the widow the entire homestead in lieu of one-third. "In such case she can have no dower." Bryan v. Rhoades, 96 Mo. 489; Gore v. Riley, 161 Mo. 245. Prior to 1895, this was a life estate. Our lawmakers, however, became jealous of second husbands, and in their wisdom provided that when the widow remarried, she forfeited her homestead. She then had another husband to support her. And no statute provides, nor does the policy of the law require, that she shall have dower in lieu of the homestead she voluntarily forfeits by her remarriage. Having no dower, the widow had no quarantine. Casteel v. Potter, 75 S.W. 598, 176 Mo. 84. Linderman agreed to pay $ 1500 for the fee; he induced plaintiff to believe that Mrs. House had dower in the land; he got a deed which conveyed the fee. He immediately discovered this fact, retained the deed and refused to pay the $ 254.25, which it was mutually agreed was the value of the supposed dower interest. This is a plain case of mutual mistake of fact as to the title to be conveyed, induced by appellant's misrepresentation. It will not alter the complexion of the case to call it mutual mistake of law and fact. It was a mutual mistake as to a title, which is a fact. When the mistake was discovered he refused to pay the full price of $ 1500, as agreed, and elected to hold title to the whole fee. Is it possible the plaintiff shall be obliged to sell the whole for what both parties intended should be the price of part only? Will appellant be permitted to retain the whole title with one hand and with the other withhold the price of the part he did not bargain to buy nor the plaintiff to sell? By electing to retain the fee he affirms the sale of the whole title, and equity will compel him to pay the agreed price therefor. Griffith v. Townley, 69 Mo. 13; Smith v. Patterson, 53 Mo.App. 72; Mich. Buggy Co. v. Woodson, 59 Mo.App. 558; Corrigan v. Tiernay, 100 Mo. 276; Summers v. Coleman, 80 Mo. 488. Equity will relieve against mutual mistakes as to legal rights. 1 Beach Mod. Eq. (1 Ed.), sec. 38; Bisp. Eq. (2 Ed.), secs. 187, 188.
OPINION
Anthony Wishon departed this life in Putnam county in 1898, leaving behind him a widow (Thirsey), a homestead and debts, but neither will nor child. The public administrator of said county, one Chrisman, under orders of the probate court, took upon himself the burden of administering upon Wishon's estate. The widow remarried -- her new yokefellow being Menzo House.
Presently thereafter said administrator commenced proceedings to sell the homestead to pay debts, which proceedings ripened into an order of sale, a sale and an approval thereof and an administrator's deed in 1900 -- defendant Linderman becoming the purchaser at an expressed consideration of $ 1,254.75. It seems the homestead comprised sixty-five acres of land, and it stands conceded that its value, as agreed on between Chrisman and Linderman, was $ 1,500.
After the administrator's sale and deed a squabble arose between Chrisman, Linderman and the former widow, Mrs. House, over her right to dower; and this suit in equity resulted, whereby the administrator seeks to recover of Linderman $ 245.25, a sum said to represent Mrs. House's dower right, it being the difference between the sum paid by Linderman to the administrator and said actual value of the land. The suit resulted in a decree in favor of the administrator in said sum, which amount was made a charge upon the land, and from that judgment Linderman appealed to the Kansas City Court of Appeals.
On the theory the title to real estate was involved, that court transferred the cause to this court.
Three petitions were filed by plaintiff. Defendant Linderman lodged demurrers against the first two, having for grounds that they did not state facts sufficient to constitute a cause of action. These demurrers were successively sustained. Thereat plaintiff filed a second amended petition. This in turn was challenged by a pleading called in the record a motion to strike out. The motion, however, is a dual pleading. In so far as the grounds of the motion aver a departure from the original petition, it may be technically considered a motion to strike out. But the motion did not stop there; it took a further step and, assuming the office of a demurrer, challenged the petition as not stating facts sufficient to constitute a cause of action. Whether it be deemed a motion or demurrer, it was overruled and defendant excepted, and stood on his motion.
In this court it is argued by defendant's learned counsel that the second amended petition states no cause of action. It is also argued that if it states any cause of action, it is a new and different cause of action from the one stated in the original petition -- in other words, that the second amended petition, placed side by side with the original petition, shows a departure.
As we interpret plaintiff's contention, it is, first, that there is no departure; and, second, that if departure there be, such departure arises in the first amended petition and not in the second amended petition -- that is that the two amended petitions state the same cause of action; and if any vice of the character insisted upon by defendant exists, it can be seen only when the first amended petition is placed side by side with the original petition. And plaintiff goes further and seeks to avoid the force of defendant's claim of departure by insisting that when a demurrer was lodged against the first amended petition, the effect of that form of pleading was to waive the departure, and, said departure being waived, the right to insist upon it (once lost) can not be revived.
These questions of pleading are learnedly discussed by counsel, pro and con; but in the view we take of the case, they are not decisive, and therefore need not be considered.
Our notion is that the turning point in the case is in defendant's main contention, to-wit: that the petition states no cause of action and that the court had no jurisdiction to enter the decree it did. The ultimate question involved in this contention may be formulated as follows: If a widow be vested with a homestead on the death of her first spouse (that being all the real estate of which he died seized), does she lose, not only her homestead, but also her dower, by a remarriage?
In order to show how the foregoing question arises on the record, it will be well to squeeze into a nutshell the constitutive elements of plaintiff's cause of action as set forth in a voluminous bill. Thus:
After averring the facts hereinbefore set forth, it is alleged that on the death of Wishon his homestead vested in his widow Thirsey, during her lifetime or widowhood, as her homestead, and that she had no dower therein; that she continued to occupy the homestead after the death of Wishon until she married Menzo House; that by her marriage she forfeited her homestead and all title in and to said premises; that after the order of sale by the probate court, and prior to the purchase by Linderman, he and the...
To continue reading
Request your trial