Johns v. Fenton

• Decision Date: 31 October 1885
• Parties: JOHNS et al., Appellants, v. FENTON.
• Court: Missouri Supreme Court

88 Mo. 64

JOHNS et al., Appellants,

v.FENTON.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Lawrence Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

N. Gibbs for appellants.

(1) In this state the statute of limitations does not run against the action for admeasurement of dower in real estate, and lapse of time is no bar to a right of dower. Littleton v. Patterson, 32 Mo. 357, 364-5-6; R. S. Mo., 1835, pp. 392-393; R. C. Mo., 1855, p. 1045. (2) It is only where a party brings his suit in a court of equity, and invokes equitable relief, that the courts have ever held that the staleness of the claim was a bar to the claim. The staleness of a claim is a defence against an equity case, only. The case at bar is an action at law, for the admeasurement of dower, and the staleness of the claim, and the lapse of time, is no defence against this action, and appellants' motion to strike out that part of respondent's answer which set up the staleness of appellants' claim, should have been sustained. 2 Story's Eq. Jur. (12 Ed.) sec. 1520, and note 4; 2 Scribner on Dower, p. 153, sec. 32; Sarrow v. Beam, 10 Ohio, 498. In Missouri time does not run against a claim of dower, and a claim cannot grow stale when time is not running against it. (3) This is stated expressly in equity suits,--commenced in a court of equity, and has no reference to a law action,--begun in a law court; in all such cases the law statute of limitations alone applies; and if there be no limitation to such an action, i. e.,--at law and in a law court, why equity will not interpose, and bar the action by an equitable limitation. 2 Scribner on Dower (1 Ed.) pp. 531-2, sec. 14, citing 2 Story's Eq. sec. 1520. (4) This is a suit to admeasure and set off the widow's dower. It is the heir's duty to set off the dower, and her non-demand thereof is not laches in her. (5) The appellant was on the day she was deforced of her dower and ever since that day has been and still is under the disability of coverture. No laches can be charged to one while under such disability. Sutton v. Casseleggi, 77 Mo. 397; 2 Perry on Trusts, sec. 867; Campbell v. Laclede Gas Light Co., 84 Mo. 352.

H. Brumback for respondent.

(1) The court did not err in overruling plaintiffs motion to strike out the part of the answer which set up the staleness of the demand. Tuttle v. Wilson, 10 Ohio, 26; Ralls v. Hughes, 1 Dana, 407; Robinson v. Miller, 2 B. Monroe, 284; Barnard v. Edwards, 4 N. H. 321; Steiger v. Hilten, 5 G. & J. 121; Kiddall v. Trimble, 1 Md. Ch. Dec. 143; Carmichael v. Carmichael, 5 Humph. 96. (2) It is no objection that the action is one at law and the plea of staleness of demand is an equitable one. Collins v. Rogers, 63 Mo. 515; Cape, etc., v. Harbison, 58 Mo. 96; State ex rel., etc., v. Meagher, 44 Mo. 362. Courts of law and equity have concurrent jurisdiction of dower. 1 Story's Eq. sec. 624. (3) The dower was set out to appellant in 1844. Dower may be assigned by parol. 2 Scribner on Dower, p. 66. (4) Her dower, having been assigned to her, appellant, the twenty-four years statute of limitations began to run against her when she quit the possession thereafter in 1844. R. S. 1879, sec. 3222; Valle v. Obenhause, 62 Mo. 84.

SHERWOOD, J.

Suit for the admeasurement of dower. Under the ruling of this court in Littleton v. Patterson, 32 Mo. 357, the statute of limitations was held not to run against a widow entitled to be endowed of lands until that her dower be assigned. Speaking on this subject, Dryden, J., in delivering the opinion of the court in that case, said: “The right limited is a present, existing right of action or of entry, and none the less so, because the one in whom the right is vested is under some disability to sue. But the wife's right to dower is not of this sort * * *, she is not laboring under the disability contemplated by the saving clause of the statute to enforce an existing right of action, as would be the case if during coverture she was disseized of an estate that had descended to her, but she is without such right as is actionable. By the death of her husband, her right of action becomes complete. This right, however, is merely a chose in action, and not a right of entry or a right of action for possession which depends for its existence on the assignment of dower; and having no right of action or of entry until dower is assigned, her rights are not within the bar of the statute.” And it is said elsewhere, that “Except where specially so provided, a widow's right of dower is not barred by the statutes of limitations of the several states.” Wood on Limit. of Act., 584.

This cause was not tried below on the theory here laid down; but upon the theory that the staleness of the demand barred any recovery of dower. This in substance is recited in the judgment which went in favor of the defendant, and a declaration of law given on his behalf, states that: “On account of the lapse of thirty-eight years since the death of plaintiff's former husband, Patrick, the plaintiff cannot recover in this action against defendant on account of the staleness of her demand.” This declaration and judgment are evidently at variance with the rule announced by this court, and the authority above cited, and, therefore, must be held erroneous. Under that rule it is obvious that if the statute of limitations does not apply...