Hart v. Parrish

• Citation: 244 S.W.2d 105
• Decision Date: 10 December 1951
• Docket Number: No. 1,No. 42351,42351,1
• Parties: HART et al. v. PARRISH et al
• Court: United States State Supreme Court of Missouri

Page 105

244 S.W.2d 105

HART et al. v. PARRISH et al.

No. 42351.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1951.

Erwin Tzinberg, Clayton, for plaintiffs-appellants.

Edwin Rader, Clayton, for Mittler and Mahoney, defendants-appellants.

Frank Coffman, E. H. Schwarzenbach and Thos. M. Gioia, all of St. Louis, for respondent.

VAN OSDOL, Commissioner.

This is an appeal from a judgment and decree in favor of Lillian Parrish, defendant-respondent, and adverse to George R. Hart and Brooksie N. Jones, plaintiffs-appellants, and to John L. Mahoney and Clarence F. Mittler, defendants-appellants, by which judgment and decree a sheriff's deed and a deed of trust, conveying and encumbering described real estate in St. Louis County, were set aside.

Plaintiffs Hart and Jones instituted the action against defendant Lillian Parrish to recover the possession of the described real estate. Plaintiffs alleged their ownership of the property as joint tenants, and stated they had acquired title by mesne conveyances from one Leona Shoop who, it was alleged, had bought the property at a sheriff's sale and had acquired title by sheriff's deed dated April 5, 1940.

Defendant Lillian Parrish by answer and counterclaim stated she was seized and possessed as the owner of an undivided half interest in the described real estate, being her (election) dower as the widow of Charles H. Parrish. She further alleged that she had been appointed administratrix of the estate of Charles H. Parrish, deceased; and that she, as a widow, had been granted statutory allowances in the sum of $1200 by the Probate Court of St. Louis County. Defendant Lillian by counterclaim prayed for a judgment ascertaining and determining title and asked that the sheriff's deed, Leona Shoop grantee, be set aside on the stated ground the consideration was so grossly inadequate as to shock the conscience and to constitute fraud. Lillian Parrish, administratrix of the estate of Charles H. Parrish, and John L. Mahoney and Clarence F. Mittler were added party defendants. Defendant Lillian by crossclaim sought the further relief of the cancellation of a deed of trust dated August 23, 1948, purportedly securing the payment of $4500, executed by plaintiffs as grantors to defendant Mahoney, trustee for defendant Mittler, beneficiary.

By its judgment and decree the trial court set aside and cancelled the sheriff's deed, and the deed of trust; and determined that defendant Lillian was the owner in fee simple of an undivided half interest in the described land, and that the heirs of Charles H. Parrish were the owners in fee simple of the other undivided half interest--all free and clear of the lien of the deed of trust.

Herein appellants contend the trial court erred in finding defendant Lillian Parrish was the owner of an undivided half interest in the described real property. Appellants assert that defendant Lillian's deceased husband had no title to the described real estate at the time of his death; and that the right of action to set aside a sale because of inadequacy of consideration was a personal right in Charles H. Parrish which had not survived in Lillian. Appellants urge the only interest defendant Lillian had, at the time of the sheriff's sale in 1940, was an inchoate right of dower, and she did not have such an interest in the property at that time which would have entitled her to maintain an action in her own behalf. And appellants say defendant-appellant Mittler was a bona fide holder of the note secured by the deed of trust and without notice of any defect in the plaintiffs' title.

Defendant-respondent Lillian contends that, as a widow, she may maintain an action and a court of equity has jurisdiction of an action to set aside the conveyances fraudulent as to her. Defendant-respondent further says that, even though the trial court may have gone too far in its decree in determining title to an undivided half interest to be in the heirs of Charles H. Parrish, still this does not result 'in eliminating or cutting down' the share of the widow as defined by the trial court's judgment and decree and for which she had asserted her claim. And defendant-respondent Lillian further contends the evidence shows defendant Mittler had notice of the defect in the title of plaintiffs, grantors in the deed of trust, and the trial court appropriately declared her interest to be free and clear of the encumbrance.

It was admitted by the parties that the described real estate was owned by Charles H. Parrish in his lifetime; that Charles H. Parrish had acquired title in 1927; that defendant Lillian since marriage in 1902 was the wife of Charles; that Charles and Lillian resided on the property until the death of Charles; that Charles died intestate December 23, 1946, leaving no surviving children or other descendants; that an action had been instituted in 1932 against Charles to recover delinquent sewer taxes and penalties in total amount of $10.12, and subsequently a judgment was rendered and the property was sold by the sheriff for the sum of $37.50; that the sheriff executed his deed of April 5, 1940 to Leona Shoop, the purchaser (the sheriff's deed was recorded August 20, 1948); that the approximate value of the property was then $3500; and that the record title became vested in the plaintiffs by mesne conveyances from Leona Shoop as follows--Leona Gibson (nee Shoop) to Charles M. Brockmann by quitclaim deed dated August 14, 1948; Charles M. Brockmann to Herman Kronsbein by quitclaim deed August 16, 1948; and Herman Kronsbein to plaintiffs Hart and Jones as joint tenants by quitclaim deed dated August 20, 1948. The deed of trust made by plaintiffs to the defendant Mahoney, trustee for defendant Mittler, was dated August 23, 1948.

After the death of her husband December 23, 1946, defendant Lillian continued in the possession of the described real estate and was (at the time of trial) in possession. She was appointed administratrix of the estate of her deceased husband on February 8, 1949, and, as a widow, filed her election, February 16, 1949, to take one half of her husband's real estate, Section 469.090, R.S.1949. The Probate Court of St. Louis County made a further order, February 16, 1949, granting her $1200 as her statutory allowances, Section 462.450, R.S.1949, of which no part has been paid. There was no personalty in the estate of Charles H. Parrish, and in his lifetime and during his marriage he had owned no real estate other than the described real property involved herein.

Defendant-respondent Lillian had an inchoate dower interest in the described property in 1940 when the property was sold by the sheriff, inasmuch as her husband was seized of an estate of inheritance therein during the marriage. Section 469.010, R.S.1949.

The right of the widow to maintain an action to recover and protect her marital rights including her dower has been long recognized. Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611; Kober v. Kober, 324 Mo. 379, 23 S.W.2d 149; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Newton v. Newton, 162 Mo. 173, 61 S.W. 881; Stone v. Stone, 18 Mo. 389; Davis v. Davis, 5 Mo. 183. A wife may maintain an action even in her husband's lifetime to set aside the husband's conveyance fraudulent as to her, and recover the property so transferred to the extent of her interest therein. Smith v. Holdoway Const. Co., 344 Mo. 862, 129 S.W.2d 894; Kober v. Kober, supra. Inchoate dower is a valuable right or interest of the wife; it has the attributes of property, real property; it is a legal estate in expectancy, a right to the future enjoyment of an estate, contingent upon the happening of an uncertain event. Kober v. Kober, supra. Coexistent with her right of common law dower which was...