Lee v. Lindell

• Court: Missouri Supreme Court
• Writing for the Court: SCOTT
• Citation: Lee v. Lindell, 22 Mo. 202 (Mo. 1855)
• Decision Date: 31 October 1855
• Parties: LEE, Plaintiff in Error, v. LINDELL AND OTHERS, Defendants in Error.^a1

22 Mo. 202

LEE, Plaintiff in Error,

v.LINDELL AND OTHERS, Defendants in Error.^a1

Supreme Court of Missouri.

October Term, 1855.

1. A widow's dower is divested by a sale in partition during coverture, although she is not joined with her husband as a party. (LEONARD, J., dissenting.)

Error to St. Louis Land Court.

Petition by the widow of Elliott Lee for dower. The plaintiff was married to Lee in 1824, in St. Louis. He died in 1851, without issue. From 1825 to 1837, he was seized in fee as tenant in common with others of the land in which dower was claimed. In 1836, a petition was filed for a partition of the land among the parties interested, according to their respective interests. The plaintiff was not a party to this suit, though her husband was. The proceedings resulted in a sale of the land under an order of court, to Jesse G. Lindell.

A demurrer to the petition, in which the above facts appeared, was sustained by the Land Court.

Hudson & Thomas, for plaintiff in error, in their brief, argued that a sale under a decree in partition did not divest the wife of one of the tenants in common of her dower in the land sold, where she was not a party to the proceeding. They cited 4 Kent's Comm. 50, 51; 1 Story's Equity, § 629, note 1; 1 Greenleaf's Cruise, marginal p. 166, § 34, p. 174, 172, § 24, p. 156, § 19; 1 Hilliard on Real Property, 148; Parks v. Brooks, 16 Ala. 529; Shearer v. Ranger, 22 Pick. 447; Porter v. Noyes, 2 Maine Rep. 22 (Greenleaf); 8 Alabama, 373; R. C. 1835, tit. “Dower,” § 2, “Partition,” § 2, 3, 14, 31; R. C. 1845, tit. “Dower,” § 7; Denton v. Nancy, 8 Barbour's Rep. 618; 11 Barb. 152; Jackson and wife v. Edwards, 7 Paige's Ch. Rep. 406, 409; Matthews v. Matthews, 1 Edwards' Ch. Rep. 576; Van Gelder v. Post, Edwards' Ch. Rep. 577; 3 Paige's Ch. Rep. 653 to 657; Combs v. Young, 4 Yerger, 218, 225, 229.R. M. Field and J. A. Kasson, for defendants in error, in a printed brief, argued the following point: A judicial sale of lands in partition, under the statute law of Missouri, during coverture, and by virtue of regular proceedings to which the husband is, and the wife is not a party, conveys a title to the purchaser, divested of the wife's inchoate dower. (R. C. 1835, tit. “Partition,” § 2, 3, 22; Statutes of 1807, 1815, 1817 and 1825, concerning dower; 11 Mo. Rep. 205; Melizet's Appeal, 17 Penn. Stat. Rep. 454-5; Riddick v. Walsh, 15 Mo. Rep. 538; Moore v. City of New York, 4 Sandf. 461; Wilson v. Davisson, 2 Rob'n Va. Rep. 409.)

SCOTT, Judge, delivered the opinion of the court.

It is an incident to an estate held in common, that the tenant can be compelled to make partition. The estate must be acquired before dower can attach, and when it does attach to such an estate, it is taken subject to the contingency of a partition. (Potter v. Wheeler, 13 Mass. 506.) When it is established that a proceeding in partition is binding on the wife, and confines her right to dower in the lot assigned to her husband, it would seem to follow as a consequence, that she would be bound, however the proceedings might eventuate, whether in a portion of the land being allotted to her husband, or in any other result. The wife must be bound or not at the time the suit is instituted, and she being bound by it, when the legislature took up the subject and directed that, instead of a partition in kind, if it should be made to appear that it be most advantageous to the parties interested that the land should be sold and its proceeds divided amongst the co-tenants, and the land is accordingly sold and a purchaser pays his money for it; on no principle can the ground on which the suit was instituted be varied, and the wife be exempted from the binding influence of the judgment, and be favored with a right to dower in the land sold, when, by the proceedings, as originally begun, they were binding on her. If this was a controversy between the husband and wife, for the proceeds of the sale, there would be some justice in her claim; but as between her and the purchaser, who has intervened in a proceeding which was binding on her, her claim has no foundation in equity. It may be that as between the husband and wife, the law should have provided some security for her dower out of the proceeds of the sale, but that such failure should be visited on the purchaser, would be a great hardship. The omission to make it could, on no principle, vary the nature of the proceeding, and make that of no force which was before binding.

The eighth section of the act concerning dower, which provides that no judgment or decree confessed by or recovered against the husband, shall prejudice the wife's right to dower, does not affect the present...