Duke v. Brandt
| Decision Date | 31 January 1873 |
| Citation | 51 Mo. 221 |
| Parties | WILLIAM DUKE, et al., Plaintiff in Error, v. CHARLES BRANDT, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Morgan Circuit Court.
Spurlock, for Plaintiff in Error.
Draffin & Stover, and Neilson, for Defendant in Error.
By virtue of the administrator's deed, Brandt acquired Thruston's inchoate title to the land, and nothing remained for him to do in order to perfect the title in himself, but to discharge the county's lien on the lands for the purchase money; and having done so he takes the land free from any claim for dower.
If a considerable portion of the purchase money had been paid by Thruston in his lifetime, then his widow would be entitled to have her dower in the land assigned; subject however to her proper contribution towards the payment of the balance of the unpaid purchase money: But in this case, no part of the purchase money was paid, and dower does not attach. (Hart vs. Logan, 49 Mo., 47.)
The land was sold away from the estate of L. C. Thruston, by his administrator by order of the Probate Court, for the payment of debts, and this purchaser having paid off the entire lien for the whole of the original purchase money, takes the whole fee simple title to the land clear from dower. (Worsham vs. Callison, 49 Mo., 206).
The county might have enforced a sale of this land under a special execution, to compel the payment of the purchase money; and the purchaser at such sale would take the title to the land free from any claim to dower by L. C. Thruston's widow. (W. St., § 3, p. 538.)
This record is in such confusion, that it is difficult to extract a satisfactory statement of what was done in the Circuit Court.
The facts, however, seem to be about as follows: Lafayette C. Thruston was the husband of plaintiff, Nancy E. Duke, and lied intestate in 1863 or 1864, and his widow Nancy internarried with the plaintiff, Wm. Duke.
This is an action for dower, in which the plaintiffs claim that Thruston died seized of the following real estate in Morgan county, to-wit: The north half of the north-west quarter of section 16, township 42, of range 19, and the north-west quarter of the north-west quarter, and the north-east quarter of the north-east quarter, and south-east quarter of north-west quarter of section 8, township and range aforesaid; and the petition alleges that the plaintiff Nancy, as widow of said Thruston, deceased, is entitled to dower in the same, and that the defendant is in possession of said lands, and the petition prays that dower be alloted and adjudged to her.
The answer, in substance, denies the plaintiffs' right to dower, and sets up a purchase of the same at administrator's sale, &c.
Upon the trial, the plaintiffs offered evidence, conducing to show that the said Thruston entered into the army in 1862 left his family residing on these lands, and died. He had lived on the lands as his own before his enlistment.
The lands in section 16, he bought of one Berry, and took a general warranty deed in fee simple, which was offered to be read in evidence. He took deeds from other parties for the lands in section 8.
When he bought the lands in section 16 of Berry, he paid part cash and the balance, about $136.00, he paid by lifting a note which Berry had given to Morgan county, for the purchase money at a sale of these lands as school lands, and eecuting his own note to the county for the same. This note stood against him at the time of his death, and was probated against his estate.
This was, in substance, the evidence offered by plaintiff, all of which was excluded upon the alleged ground, that the plaintiff had shown no such seizin in Thruston as entitled the plaintiff Nancy, to dower.
The defendant claimed the lands by virtue of a sale and deed made by the administrator of Thruston for payment of debts. But this sale and deed only comprehended one of the eighty acres tracts in section 8, and none of the land in section 16 in which dower is claimed. The defendant also proved that after the administrator's sale, he paid off Thruston's note to the county, or rather the judgment which had been rendered on it. He was threatened with a suit to foreclose the vendor's lien, and paid it off to save costs.
The case was submitted to the court, and a judgment given againt the plaintiffs. The usual motions in arrest, and for a new trial were made and overruled. I am unable to perceive upon what ground the court excluded the plaintiff's evidence. The evidence clearly tended to show that Thruston died seized in fee of the lands in section 8. Possession of lands claiing them as his own, is evidence of title in the possessor, and if it be conceded...
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Blevins v. Smith
...necessary party to an action to foreclose a vendor's lien in order to bar her dower. See, also, Fontaine v. Sav. Inst., 57 Mo. 552; Duke v. Brandt, 51 Mo. 221. the husband has taken a title bond for land, and paid part of the purchase money, his wife has an inchoate right of dower in the la......
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United Cemeteries Co. v. Strother
... ... Wooldridge v. Smith, 243 ... Mo. 191. Purchase money mortgages and liens are especially ... and meritoriously regarded in equity. Duke v. Brant, ... 51 Mo. 221; Fountaine v. Boatmen's Bank, 57 Mo ... 552; Babb v. Taylor, 184 S.W. 1028; Jones v ... Rush, 156 Mo. 364; Eubank v ... ...
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United Cemeteries Co. v. Strother
...court. Wooldridge v. Smith, 243 Mo. 191. Purchase money mortgages and liens are especially and meritoriously regarded in equity. Duke v. Brant, 51 Mo. 221; Fountaine v. Boatmen's Bank, 57 Mo. 552; Babb v. Taylor, 184 S.W. 1028; Jones v. Rush, 156 Mo. 364; Eubank v. Finnell, 118 Mo. App. 535......
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Young v. Thrasher
... ... she claims, is not entitled to dower therein. Worsham v ... Callison, 49 Mo. 206; Duke v. Brandt, 51 Mo ... 221; Davis v. Greene, 102 Mo. 170; Nicholl v ... Todd, 70 Ill. 295; Pugh v. Bell, 2 Mon. [Ky.] ... 125; 5 American & ... ...