Garrison v. Young

• Decision Date: 30 June 1896
• Citation: 36 S.W. 662,135 Mo. 203
• Parties: Garrison, Plaintiff in Error, v. Young
• Court: Missouri Supreme Court

36 S.W. 662

135 Mo. 203

Garrison, Plaintiff in Error, v. Young

Supreme Court of Missouri, Second Division

June 30, 1896

Error to De Kalb Circuit Court.

Affirmed.

Robert A. Hewitt for plaintiff in error.

(1) The demurrer did not distinctively specify its grounds and hence should have been overruled. Sec. 2044, R. S. 1889; Alnutt v. Loper, 48 Mo. 321; Chelley's Adm'r v Wells, 33 Mo. 106; McClurg v. Phillips, 49 Mo 316; McNair v. Lott, 25 Mo. 182; Roberts v Bartlett, 26 Mo.App. 611. (2) The petition stated sufficient facts to constitute a cause of action.

William Henry for defendant in error.

(1) The petition does not state facts sufficient to constitute a cause of action, for in order to state a cause of action for the assignment of dower it is essential to make every allegation necessary to show that the party through whom the plaintiff claims is dead, that the plaintiff is his widow, and that during the marriage such party was "seized of an estate of inheritance" of the lands. R. S. 1855, sec. 1, chap. 56, page 668; Vansantvoord's Pld. and Pr. 289; Nash's Pld. and Pr. (Revised 3d) 752; Paterbaugh's Ill. Pld. and Pr. 777. (2) The grounds of demurrer to the petition are sufficiently specific. Bliss on Code Pleadings [2 Ed], secs. 413 and 416; R. S. 1889, sec. 2047; Morgan v. Bouse, 53 Mo. 221; State v. Weeks, 77 Mo. 498.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action for the admeasurement of dower in a tract of land in DeKalb county Missouri, and damages for its deforcement.

The petition leaving off the formal parts is as follows:

"Plaintiff states that Henry Hunter died intestate at said county of DeKalb, on the twenty-seventh day of December, A. D. 1856, seized of the following described real estate, situate in the county of DeKalb, state aforesaid, viz.: The west half of the northeast quarter of section number (20) twenty, township number (58) fifty-eight and in range number (30) thirty; that said Henry Hunter left this plaintiff, as his widow, and the following named children (issue of said Hunter and this plaintiff) as his sole heirs, viz.: Ellen Hunter (who afterward intermarried with N. B. Crawford), Surrilda Hunter, who afterward intermarried with Jefferson P. Crews, and Henry H. Hunter, which said heirs were entitled to said real estate, subject to the life estate of this plaintiff.

"Plaintiff says she intermarried with one Oliver Garrison, September 25, 1859, and continued to live with him, said Garrison, as his wife, till the twenty-seventh day of July, A. D. 1892, at which said last date said Garrison departed this life.

"Plaintiff further states that defendant, William H. Young, has title to aforesaid lands, under and by virtue of deeds of conveyance from said Ellen and husband, Crawford, Surrilda and husband, Crews, and Henry H. Hunter, heirs as aforesaid, subject to this plaintiff's dower therein.

"Plaintiff further says that dower has not been heretofore assigned her.

"Plaintiff says that on the first day of March, 1880, defendant entered into said premises, so alienated by the heirs as aforesaid, and wrongfully deforced plaintiff of dower right therein, and has continued such possession and deforcement ever since, to plaintiff's damage in the sum of six hundred dollars; that the monthly value of the rents and profits of her said dower estate is ten dollars per month.

"Wherefore, plaintiff prays judgment for six hundred dollars damages for said deforcement, and ten dollars for the monthly rents and profits from the rendition of judgment, and for admeasurement of dower in said lands, if susceptible thereof without too great injury, and if not, plaintiff prays judgment for the monthly rents and profits, as by the statutes made and provided, and for all other relief meet and proper."

Defendant demurred to the petition upon the ground,...