Ecton v. Tomlinson
| Citation | 212 S.W. 865,278 Mo. 282 |
| Parties | ALICE ECTON v. LILLIE TOMLINSON et al., Appellants |
| Decision Date | 02 June 1919 |
| Court | United States State Supreme Court of Missouri |
Appeal from Audrain Circuit Court. -- Hon. E. S. Gantt, Judge.
Reversed.
R. D Rogers for appellants.
(1) The court in the divorce case had jurisdiction over the parties and the subject-matters, and the judgment there rendered even though erroneous, not being appealed from or set aside became final and the plaintiff became bound thereby and cannot attack said judgment in this case. Murphy v. De France, 101 Mo. 151; State ex rel. v. Edwards, 192 Mo.App. 413; State v. McCord, 207 Mo. 519. (2) Plaintiff by accepting the decree in the divorce case and getting more property thereunder than she would have gotten if said decree had not taken into consideration her loss of inchoate dower, is estopped to now deny the validity of the judgment by virtue of which she acquired the property. Crews v. Mooney, 74 Mo. 26; 14 Cyc. 724, par. 4; Marvin v. Collins, 48 Ill. 156; Owens v. Yale, 42 N.W. 817; Adams v. Storey, 26 N.E. 582; DeWitt v. DeWitt, 66 N.E. 140; Pearson v. Pearson, 178 S.W. 1164; Delafield v. Brady, 15 N.E. 428; Storke v. Storke, 64 P. 578; Long v. Barton, 86 N.E. 127; Walton v. Walton, 77 N.W. 399; Gallager v. Gallager, 77 N.W. 145; Linse v. Linse, 108 N.W. 8; Baird v. Connell, 96 N.W. 863; Elmendorf v. Lockwood, 57 N.W. 322. (3) Even if this court should hold void that part of the decree in the divorce case, dealing with dower, yet as plaintiff accepted benefits thereunder, she is now estopped from asserting the decree was void. Storke v. Storke, 64 P. 578; 14 Cyc. 724.
Fry & Fry for respondent.
(1) A woman can be deprived of her dower in Missouri in only two ways: First, by deed of conveyance executed and acknowledged by her jointly with her husband. R. S. 1909, secs. 2787, 2788 and 2789; Hord v. Taubman, 79 Mo. 101. Second, if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed. R. S. 1909, secs. 359, 358, 365. Neither voluntary nor involuntary alienation of husband's title will defeat dower. Grady v. McCorkle, 57 Mo. 172; Hall v. Smith, 103 Mo. 289; McCreary v. Lewis, 114 Mo. 582. (2) The plaintiff was divorced from her husband for the fault and misconduct of said husband and "she shall not thereby lose her dower." R. S. 1909, sec. 359. Therefore the decree, wherein it undertook to compel her relinquishment of her dower, "is without any force or vitality" and cannot be enforced. Davison v. Davison, 207 Mo. 702; Jordan v. Rudluff, 264 Mo. 129; Murray v. Scully, 259 Mo. 57; Scales v. Scales, 65 Mo.App. 292; Rannells v. Gerner, 80 Mo. 474; Sec. 358, R. S. 1909; Saunders v. Saunders, 144 Mo. 482. (3) There is no estoppel in this case. Rannells v. Gerner, 80 Mo. 474; Jordan v. Rudluff, 264 Mo. 129; Ridgley v. Stillwell, 27 Mo. 128; Dickey v. Heim, 48 Mo.App. 114; Blodgett v. Berry, 97 Mo. 273. The only possible kind of estoppel in the case would be estoppel in pais. Blodgett v. Perry, 97 Mo. 273. Estoppel in pais does not apply to married women, especially in matter of dower. Rannells v. Gerner, 80 Mo. 474.
OPINION
This is a suit for the recovery of dower and is here by appeal from the Circuit Court of Audrain County. The petition is conventional. The answer pleads the decree of divorce hereinafter set out as a complete defense in that it operated to extinguish dower, as it is claimed, and also by way of estoppel.
Respondent, a widow with two children, in 1901, married one William S. Ragsdale. In 1907 she secured a divorce from him for his fault and misconduct. The decree of divorce, as far as material in this case, is as follows:
"And the court doth further find that the said plaintiff is entitled to all of the household goods and furniture now in her possession and removed from the residence of the said defendant, and is also entitled to one diamond ring and one diamond stud heretofore taken into her possession from the defendant; it is therefore considered, ordered and adjudged by the court that the plaintiff be divorced from the bonds of matrimony heretofore contracted between the plaintiff and the defendant and that she have a judgment for alimony in addition to the property above described in the sum of $ 1500, and that the same be paid to her as follows: $ 500 on or before the first day of April, 1907, and $ 1000 on or before September 1, 1907, and that said $ 1000 payment bear interest from date at the rate of six per cent per annum, and it is further adjudged by the court that said plaintiff take said property and said debts as alimony in gross and in lieu of all dower and other right in defendant's property and that defendant's property be free from any further claim by said plaintiff."
The trial court in the instant case, at the request of defendant, made the following special finding of fact:
"The court finds from the evidence that the alimony in gross awarded plaintiff in her suit for divorce amounted to about the sum of $ 2500, and that the decree of divorce was prepared and drawn by George Robertson, who was the attorney for plaintiff in the divorce suit, and that the court in the divorce suit in awarding alimony in gross intended to award a sum sufficient to include and compensate plaintiff for the value of her inchoate right of dower and gave plaintiff substantially more alimony in gross than would have been given her if the question of dower had not been considered in said decree of divorce, and the court further finds that the parties to said divorce suit and their respective counsel so understood said decree of divorce."
Ragsdale had never been married before, and upon his marriage to respondent he provided a home and furnished it. Some months prior to the institution of the divorce suit by respondent she separated from her husband, and removed from his dwelling and took with her his household goods and furniture and the diamonds mentioned in the decree. This property that she took, together with the $ 1500 awarded to her as alimony, was equivalent to practically one-half of all the property owned by Ragsdale. Neither party took an appeal from the decree of divorce, and it became final as to each of them so far as each was concluded thereby. Respondent kept the personal property of her husband mentioned in the decree, and Ragsdale paid the money awarded as alimony. Ragsdale died in March, 1916, and respondent immediately instituted this suit to recover dower in his real estate.
No children were born of the marriage, and, consequently, Ragsdale left no descendents. One Goldie Ragsdale, and defendant Lillie Tomlinson, his nieces, were his only heirs. Goldie conveyed after her uncle's death to her sister Lillie, who, upon the institution of the suit, was in possession of the lands in which dower is claimed. Defendant, Green Tomlinson, is the husband of his codefendant and has no interest in said lands.
This case was tried to the court without a jury. At the request of plaintiff, the court declared as a matter of law that that part of the divorce decree, to-wit, "And in lieu of all dower and other rights in defendant's property and that defendant's property be free from any further claim by plaintiff," is absolutely void and of no effect and is not binding upon the plaintiff. The court found the issues for the plaintiff and rendered judgment accordingly. Appellants after an unavailing motion for new trial were duly granted an appeal to this court.
As the evidence indisputably shows that respondent was married to Ragsdale, that at a time during the marriage he was seized of an estate of inheritance in the lands in controversy, that she at no time joined with him in a deed or other conveyance of the same, that she obtained a divorce from him for his fault and misconduct, and that he has since died, she is entitled to dower unless the judgment in the divorce case, under the circumstances under which it was rendered and her subsequent acquiescence therein, operated to preclude her. That judgment decreed to her household goods and furniture and diamonds, the property of her husband, of the value of $ 1000, and in addition thereto awarded her alimony in the sum of $ 1500, the payment of a part of which was deferred and bore interest. The judgment then recites "And it is further adjudged by the court that said plaintiff take said property and said debts as alimony in gross and in lieu of all dower and other rights in defendant's property and that defendant's property be free from any further claim by said plaintiff." It is the theory of the respondent that the judgment in the respect that it attempts to deprive her of dower in the lands of her former husband is void, a mere nullity, and not binding upon her in any degree whatever. Appellants on the contrary contend, (1) that as the court had jurisdiction over the parties and subject-matter, the judgment, even though erroneous, not being appealed from or set...
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