Holt v. Hanley

• Decision Date: 23 December 1911
• Citation: 149 S.W. 1
• Parties: HOLT v. HANLEY.
• Court: Missouri Supreme Court

149 S.W. 1

HOLT v. HANLEY.

Supreme Court of Missouri, Division No. 1.

December 23, 1911.

Rehearing Denied July 11, 1912.

1. APPEAL AND ERROR (§ 305) — REVIEW — EXCEPTIONS—DENIAL OF NEW TRIAL.

In the absence of exception preserved by bill of exceptions to denial of new trial, only errors appearing on the record proper can be reviewed.

2. PLEADING (§ 132) — GENERAL — DENIAL — SPECIAL PLEA — CONFESSION AND AVOIDANCE.

The answer to a petition in a suit for assignment of dower to plaintiff as widow of H., which, though beginning with a denial of every allegation of the complaint, not thereafter specifically admitted, proceeds with allegations of conveyance of the land to H. and subsequent sale thereof under judgment against him, and concludes that, "on account of the facts aforesaid," plaintiff has not and cannot have any dower interest in the land, amounts to a plea of confession and avoidance after a general denial; and so admits the marriage of plaintiff and death of her husband, as alleged in the petition.

3. DOWER (§ 46) — DIVESTITURE — SALE ON JUDGMENT AGAINST HUSBAND.

Under Rev. St. 1909, § 345, giving a widow dower in all lands of which her husband was seised of an estate of inheritance at any time during the marriage to which she shall not have relinquished her right of dower in the manner prescribed by law, and section 358 providing that no judgment or decree confessed by or recovered against the husband shall prejudice her right and interest, sale of the land under judgment on a creditor's bill against him, to which she was not a party, does not divest her right, though a creditor having a right to a vendor's lien was made a defendant, and was preferred by the judgment.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Mary E. Holt against O. T. Hanley. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This action was instituted to the September term, 1907, of the Audrain circuit court for the admeasurement of dower in the E. ½ of the N. E. ¼, and the E. ½ of the W. ½ of the N. E. ¼, of section 4, in township 52 of range 10 in said county. The petition states, in substance, that the plaintiff was lawfully married to S. W. Holt on the 20th day of August, 1865, and lived with him as his wife until his death, which occurred April 28, 1907; that he died seised of an estate of inheritance in said real estate, and that she thereby became lawfully entitled to the possession of an undivided onethird part thereof as her reasonable dower therein; that defendant afterward entered into the premises and wrongfully deforced her thereof, and unlawfully withholds the same from her, after demand therefor, to her damage in the sum of $500; that the monthly value of the rents and profits of her dower is $50. She asks for the admeasurement of her dower and for damages as afore-said and for general relief.

The answer, so far as applicable to the issues in this case, is as follows:

"Now comes the defendant, and for his answer to plaintiff's petition denies each and every allegation thereof, not hereinafter specifically admitted to be true. Defendant, further answering, admits that he is the owner of and in possession of the said lands described in plaintiff's petition, and says that on the 5th day of March, 1879, one Charles B. Bodes conveyed said lands to S. W. Holt, but defendant says that the said S. W. Holt never took possession of said lands, nor was he entitled to the possession thereof; that said lands at that date were of the value of about $7 per acre, and there were included in said conveyance, not only the said lands described in petition, but a total acreage amounting to 270 acres; that on, said date said S. W. Holt was in possession of and in the control of certain moneys, means, and merchandise belonging to various and different parties, and that at the date of said sale there was a deed of trust upon said lands for the sum of one thousand ($1,000) dollars and some interest which the said S. W. Holt assumed and agreed to pay as part of the purchase price thereof, and this said balance of $1,000 remained as a vendor's lien against said lands in favor of the said C. B. Bodes and the said S. W. Holt took the said property, means, merchandise, and money which belonged to the parties aforesaid, and against their rights and invested the same in said lands without their knowledge or consent, and he then and thereby became a trustee for the owners of said merchandise, means, and money, and held said lands for the use and benefit of said various parties; that all of said parties in the Moberly court of common pleas, a court of general jurisdiction of the state of Missouri, obtained judgments against the said S. W. Holt for the unlawful conversion of said merchandise, means and money, and said judgments were as follows:

                  One in favor of Vogel & Kohn for....  $396 69
                  One in favor of Somers & Lynd for...   309 11
                  One in favor of E. J. Sears for.....   193 56
                  One in favor of A. A. Mellier for...   210 03
                  One in favor of S. Kinsbaker & Bro
                   for................................   295 25
                  One in favor of Malin, Fowler & Co
                   for................................   253 83
                  One in favor of Brown & Moore for...   169 00
                

"And after said different claims had been reduced to judgments in favor of said various parties in said court of common pleas, tin 1879, the said parties filed their suit in the circuit court of Audrain county to compel the payment of their said several judgments and have the same declared to be a lien against the lands described in plaintiff's petition and all of the said lands amounting to 270 acres, and at the June term, 1880, in an action between all of said parties and C. B. Bodes and the said S. W. Holt, the said circuit court, being a court of general jurisdiction and having jurisdiction over the subjectmatter and all of the parties thereto, did render a judgment ordering and decreeing that all of said lands be sold, and did find that there was a balance due the said C. B. Rodes from the said Holt on the purchase price of said lands amounting in all to the sum of $1,027.30, and further decreeing that said judgment in favor of said C. B. Bodes and against said Holt for said purchase price should bear interest at the rate of 8 per tent. per annum, and did further find and determine that in said judgment the said Bodes had a prior lien on said lands until said amount was paid, and did further determine that said lands should be sold for the purchase price thereof in favor of said Bodes, and that the balance of the proceeds arising from the sale of said lands after the purchase price and the expenses of said action was paid should be applied upon their respective judgments in favor of the parties aforesaid in accordance with the respective amounts of their said judgments; that the court further entered an order and judgment finding in favor of said S. W. Holt that he was entitled to $300 of exemptions out of said lands, and that said $300 be paid over to the said S. W. Holt, and that the same be a prior judgment to all of the judgments aforesaid in favor of said parties, and did further order and decree that all of said lands be sold.

"Defendant, further answering, says that said lands were sold under said decree at the October term of the said Audrain circuit court in 1880, and that the total cost of said sale amounted to $108.25, and that all of said land sold for the sum of $1,900, being the fair cash market value of said lands at said date, and the proceeds of said sale were first devoted to the payment of said costs, and, second, to the payment of said judgment for said vendor's lien, and, third, to the payment of said judgment for exemptions in favor of said S. W. Holt, and, fourth, the remainder was distributed pro rata among the said several creditors aforesaid."

The plaintiff replied by general denial, and the cause went to trial. A jury was waived, and the court, after hearing the evidence, found the issues for defendant and entered judgment accordingly from which this appeal was taken. The plaintiff in due time filed her motion for a new trial, which was overruled by the court. No exception was taken by her to this ruling. She filed in due time her bill of exceptions, setting out the evidence and other proceedings at the trial.

Fry & Rodgers, for appellant. Robertson & Robertson, for respondent.

BROWN, C. (after stating the facts as above).

No exception was taken by the plaintiff to the action of the court in overruling the motion for new trial. No rule of practice is more firmly established in this state than that all matters of exception must be presented for re-examination in the motion for a new trial, and exception taken, and preserved in a bill of exceptions, to the final action of the court thereon, to authorize their examination upon appeal or writ of error. Our examination of the errors complained of in this case must therefore be confined to such as appear upon the record proper. Sicher v. Rambousek, 193 Mo. 113, 128, 91 S. W. 68, and cases cited.

The petition contains all the averments necessary in a suit for the assignment of dower in the lands described in it, including the statement that the plaintiff was married to S. W. Holt in 1865, and continued to live with him as his wife until his death, which occurred April 28, 1907, and that during that time the husband was seised of an absolute estate of inheritance in the land. The question for our consideration is whether the answer states a defense to that cause of action. It begins with the statement that "the defendant for his answer to plaintiff's petition denies each and every allegation thereof, not hereinafter specifically admitted to be true." It then proceeds to state, in substance, that on the 5th day of March, 1879, Holt, by conveyance from one Charles B. Bodes, became seised in fee a the lands in controversy, which were then incumbered by a...