Hunt v. Thompson

• Decision Date: 31 October 1875
• Parties: DANIEL HUNT, Respondent, v. L. E. THOMPSON, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 148

DANIEL HUNT, Respondent,

v.L. E. THOMPSON, et al., Appellants.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Pettis Circuit Court.

Crandall & Sinnett, with B. F. Garrison, for Appellants.

I. On being divorced from her husband for his fault or misconduct, defendant, Lucretia Thompson, was entitled to an immediate assignment of dower. The natural death of her husband is not necessary under our statute. (Wagn. Stat., 538, § 1; Id., 541, § 14; Duvol vs. Howland, 14 Mass., 219; Young vs. Gregory, 46 Me., 475; Harding vs. Alden, 9 Greenl., 140; Rev. Stat. Maine, 1840, p. 391, § 1; p. 608, § 10; Wright vs. Wright, 2 Dessaus, [S. C.] 242, 244; Braning vs. Headley, 2 Rob., 340; Wood vs. Simmons, 20 Mo., 363.)

II. Until dower is assigned, ejectment will not lie against the widow. (Wagn. Stat., 542, § 21; Kane vs. McCown, 55 Mo., 181.)

III. This action cannot be maintained against Lucretia Thompson, for the reason that she was a married woman at the time of the commencement of this action. Her possession is the possession of her husband. (Meegan vs. Gunsollis, 19 Mo., 417; Bauer vs. Bauer, 40 Mo., 61; Higgins vs. Peltzer, 49 Mo., 152.)

Phillips & Vest, for Respondent.

I. Lucretia Thompson was at the time when the judgment was rendered, as may be seen from the portion of her answer stricken out, a feme sole, and judgment in personam could be rendered against her as such.

II. Her divorce gave her no right to hold the premises by virtue of her quarantine.

In England the civil death of the husband did not give the wife her dower. (2 Crabb's Real Prop., 130.) And in this particular the common law has not been changed by our State law. But in Missouri the husband divorced for his own fault is not civiliter mortuus. (Dobson vs. Butler, 17 Mo., 87-90.)

Dower is not consummate till the husband's actual death. (4 Kent Com., 50.) And the contrary rule has never obtained anywhere as to divorced women, except by virtue of the statute.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his action of ejectment in the Jasper circuit court to recover the possession of certain lands situated in that county. The cause was taken by change of venue to Pettis county, where a trial was had and judgment was rendered in plaintiff's favor. The action was originally instituted against John D. Thompson, Lucretia E. Thompson (the appellant here) his wife, and Hugh L. and William A., his sons. John D. Thompson made no defense, and the sons answered that they were not in possession, and disclaimed having any interest therein.

Lucretia E. admitted that she was in possession of the premises as the wife of John D. Thompson, but denied any unlawful entry, and denied the right of the plaintiff to recover. As a further defense she set up in her answer that plaintiff claimed title to the premises through a trust deed and sale thereunder, made by her husband, John D., and herself, to one Maxey, as trustee for the plaintiff; that the deed was fraudulent and void as to her; that she was compelled to sign said deed of trust by the coercion and undue influence of her husband, John D. and the plaintiff, and that she never acknowledged the same to have been voluntarily executed by her. She further alleged that the officer before whom the acknowledgment purported to have been taken, never examined her separate and apart from her husband, and that his certificate was false, and fraudulently procured by her husband, John D. and the plaintiff. She then averred that since the commencement of this action she had obtained a decree of divorce from her husband, and that the court granting the decree found that she was the innocent and injured party, and that in that suit no alimony was prayed for or allowed, and that her dower in her husband's lands had never been relinquished by nor assigned to her, and she therefore prayed to be discharged. The court, on motion, struck out all the new matter set up in the answer as constituting no defence. At the trial the plaintiff dismissed as to the husband, John D., and one of the sons, William A., and a judgment of ouster, with damages and monthly rents, was then rendered against the other defendants, Lucretia E. and Hugh L., who prosecute this appeal.

It is entirely unnecessary to examine the minor points that have been pressed upon our attention in the argument, and but two leading questions which run through the case will be noticed. The first is the action of the court in striking out that part of Lucretia E.'s answer which claimed dower in the land, on the ground that she had been divorced, notwithstanding that her husband still survived; and the second is whether the action was in any event maintainable against her.

It is assumed in the argument for the appellant, that the granting of the decree of divorce for the fault of the husband was equivalent to his civil death, and immediately thereafter entitled the wife to an assignment of dower out of his lands, and that the right of possession continued in her till dower was duly set apart. The case of Wood vs. Simmons (20 Mo., 363) is cited as decisive authority upon this point. In that case it was held that upon a sentence of divorce, a wife becomes entitled to all choses in action not previously reduced into possession by the husband, as by survivorship upon the death of the husband. The husband and wife during marriage had conveyed the wife's reversionary interest in certain slaves, and after procuring a divorce, the wife enjoined the assignee from taking possession of them, on the ground that, by survivorship, they belonged to her for the support of herself and children. Mr. Justice Ryland, in delivering the opinion of the court, said: “Here the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband; and the wife must be looked upon as his widow.”

In the case of Browning vs. Headly (2 Rob. Va., 340) the divorce obtained by the wife from the husband by the legislature of Kentucky, was considered as operating as the civil death of the husband. Judge Stanard said: “I concur in the opinion of Judge Allen, that the effect of the act of divorce upon the rights of the wife, is to place her in the same position as if her husband had then died. I dismiss therefore, this question, by stating that there is no doubt of the correctness of the judgment below, so far as it considers the divorce of the wife from the husband operating so as to place the wife in the situation she would have occupied had her husband then died.” The case of Browning vs. Headly, cited by Judge Ryland, was analogous in its facts to Woods vs. Simmons, but it was decided differently, for the reason that the wife's choses in action had been reduced to possession, and it was therefore held that her right of survivorship had been...