Kennerly v. Missouri Ins. Co.

• Decision Date: 31 October 1847
• Citation: 11 Mo. 204
• Parties: KENNERLY v. MISSOURI INSURANCE COMPANY.
• Court: Missouri Supreme Court

11 Mo. 204

KENNERLY

v.MISSOURI INSURANCE COMPANY.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

CASSELBERRY, for Plaintiff.

SPALDING & TIFFANY, for Defendant.

1. The Revised Code of 1825, p. 332-3, § 1, provides expressly that there shall be no dower in lands sold on execution, and this case is governed by this act. Ibid, 369, § 20, sheriff's deed passes right of dower. 2. If this case is not controlled by the act of 1825, concerning Dower, still the plaintiff in error has no right, as the acts in force prior to 1825, would also divest the dower, or prevent her from claiming it. 1 Edwards' Comp. p. 128, § 6; p. 399, §§ 9, 10, this act repeals foregoing; p. 410, § 45, widow's dower referred to in sections 4 and 9; p. 442, § 5, shows “dower” issued for widow's share in personalty; p. 509, §§ 1, 4, 5, repeals only what is repugnant to it: p. 857, does not repeal in terms preceding acts, and makes no provision as to dower, but is merely an act respecting Descents. 2 Mo. R. 32, widow under act of 1817, entitled to no dower till debts are paid; and p. 163, sale on execution passed her right of dower, but not her right to stay in mansion-house.

NAPTON, J.

This was a petition for dower in a lot in the city of St. Louis, by Eliza M. Kennerly, widow of the late James Kennerly. The petition states that James H. Kennerly died in August, 1840. Several pleas were filed; 1st, that James H. Kennerly was never seized of such an estate as would entitle the widow to dower: 2nd, that she was not entitled to dower, &c. 3rd, that after the intermarriage, and in the life-time of said James, to-wit: on the 28th March, 1827, said lot was sold under executions then in force, in favor of the President, Directors & Company of the Bank of Missouri against said James, issued on valid and subsisting judgments rendered by the St. Louis Circuit Court, and was duly conveyed by the sheriff to one George F. Strother, for the benefit of the United States, by deed dated 30th April, 1827, whereby plaintiff's right of dower was divested: 4th, that after the marriage of said James, and after he had became seized of an estate in fee simple in said lot, to-wit: on the 4th of June, 1824, the President, Directors & Company of the Bank of Missouri recovered against the said James, by the judgment of the St. Louis Circuit Court, the sum of $1,105 83, and that on the same day and year, the said President, Directors & Company of the Bank of Missouri, by the consideration and judgment of the same court, also recovered in another action, theretofore pending against the said James, the sum of $14,375 83, and such proceedings were had on such judgments, that on the 5th April, 1826, the same judgments were duly revived on scire facias. and executions thereof awarded. upon which judgments afterwards, on the 8th February, 1827, executions were duly issued against said James, and placed in the hands of the then sheriff of St. Louis county to be executed, under which he duly levied on said lot, and advertised the same for sale; and afterwards in the life time of said James, on the 28th March, 1827, at the court-house door in said county, during the sitting of said court, said sheriff sold said lot in good faith under said judgments and executions to George F. Strother, for the use of the United States, and did thereupon, by his deed dated 30th April, 1827, convey said lot in fee simple to said Strother, whereby all the right and title of said plaintiff was divested, &c. Demurrers were filed to the 3rd and 4th pleas, and judgment was rendered on the demurrers for ...