Hinds v. Stevens

• Decision Date: 31 January 1870
• Citation: 45 Mo. 209
• Parties: CORDELIA A. HINDS, Plaintiff in Error, v. RHODA STEVENS et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 209

CORDELIA A. HINDS, Plaintiff in Error,

v.RHODA STEVENS et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Ewing, and Smith, for plaintiff in error.

Sale of land in partition unquestionably divests the inchoate dower of the wife. (Lee v. Lindell, 22 Mo. 202; Jackson v. Edwards, 22 Wend. 498.) If the sale takes place after the husband's death, she would have the same interest in the money as though it were received by her husband while living. Her interest in the money would attach at his death, just as that right or interest would attach to the parcel of land were it assigned him in the partition.

Lay & Belch, for defendants in error.

Plaintiff's right of dower having attached before the sale of the land to which this right attached, it could not be divested without a voluntary relinquishment by her, or by a court having jurisdiction over her and the subject-matter. She must have been a party. (R. C. 1855, ch. 119, §§ 3, 4; Sto. Eq. 629-30; Lee v. Lindell, 22 Mo. 202.) The case of Lee v. Lindell does not go so far as to decide that when the husband died seized the dower was divested by subsequent sale.

BLISS, Judge, delivered the opinion of the court.

In 1859, the husband of plaintiff, and others, filed their petition for partition in the lands belonging to their father's estate, and after the usual order of partition and report of commissioner that the property could not be divided without great prejudice, etc., at the October term, 1862, final judgment was rendered that the lands be sold, and the proceeds divided. After the judgment and before the sale, the husband of plaintiff dies, and the record does not show what was done with the proceeds of the sale. The present plaintiff now comes into court and presents her petition for dower in her said husband's interest, in the lands so ordered to be sold, and claims that inasmuch as she was not a party to the original proceeding, and especially as the property was not sold until after her husband's decease, her claim is not barred.

Since the decision of this court in Lee v. Lindell, 22 Mo. 202, it has never been deemed necessary to make the wife of a person interested in the partition of lands a party to a proceeding for partition. The statute does not expressly require it, and I can not conceive of any interest she can have in the result more than in any other suit touching the realty. If the land be divided in specie, her inchoate right attaches at once to the land thus set apart to the husband in severalty; and if it be sold, I know not how it would be possible to so estimate the value of that shadowy right, as to pay her, or invest for her, any portion of the proceeds of the sale. The very broad language in relation to parties to proceedings in partition was substantially the same in the statute of 1835, under which Lee v. Lindell was decided, as in...