Martin v. Martin

• Decision Date: 05 April 1926
• Parties: ALVY LOU MARTIN v. LULU MARTIN et al.; LULU MARTIN, Appellant
• Court: Missouri Supreme Court

285 S.W. 92

313 Mo. 476

ALVY LOU MARTIN v. LULU MARTIN et al.; LULU MARTIN, Appellant

Supreme Court of Missouri

April 5, 1926

Appeal from Schuyler Circuit Court; Hon. N. M. Pettingill Judge.

Reversed and remanded.

E E. Fogle for appellant.

(1) Appellant was entitled to dower in all the land of which her husband died seized of an estate of inheritance, including the encumbered land. R. S. 1919, sec. 315; Casteel v Potter, 176 Mo. 76. (2) Dower is highly favored in equity, and the doweress is a favorite of the law. 1 Cord on Leg. & Equit. Rights of Married Women (2 Ed.) sec. 489. (3) If the husband owns land and encumbers it, the wife joining in the encumbrance, and the land is sold without foreclosing the encumbrance, the wife not joining in the sale, and the debt is paid out of the proceeds of said sale, the wife retains her dower. Atkinson v. Stewart, 46 Mo. 510; Casteel v. Potter, 176 Mo. 76. (4) If there was sufficient of the unincumbered land to pay the debt on the dower land, then the dower land should have been discharged of its debt. Smith v. Stevens, 164 Mo. 415.

Higbee & Mills for respondent.

The court correctly required appellant to contribute her proportionate part towards the liquidation of the mortgage indebtedness. They were separate deeds of trust covering separate tracts of the land; one hundred acres were unencumbered. She joined in the execution of the trust deeds; they were therefore superior to her dowable estate. By requiring her to pay to the heirs one-third of the interest on the encumbrances, during her expectancy, reduced to a present cash basis, by computing the same according to the mortality tables, the court followed the authorities of this and other states. 14 Cyc. 920-922; 17 C. J. 482; Adams v. Adams, 183 Mo. 396; Swaine v. Perine, 5 Johns Ch. 491; Bell v. New York, 10 Paige, 71; House v. House, 10 Paige, 158; Bank v. Owens, 31 Mo. 320; Ross v. Boardman, 22 Hun. 527; Greenbaum v. Austrian, 70 Ill. 591; Van Vronker v. Eastman, 48 Mass. 157; Carll v. Butman, 7 Me. 102; Danforth v. Smith, 23 Vt. 247; Russell v. Austin, 1 Paige, 129; McArthur v. Franklin, 16 Ohio St. 208; Harper v. Vaughan, 87 Va. 426; Trowbridge Exr. v. Sypher, 55 Iowa 352; Scribner on Dower (2 Ed.) chap. 24. (2) The widow, who joined with her husband in the execution of the notes and trust deeds, does not stand as a surety. The court had no power to order the encumbrances paid out of the proceeds of the sale of the unencumbered land. That is what appellant contends should be done. Adams v. Adams, 183 Mo. 410; Scribner on Dower (2 Ed.) chs. 23, 24. (3) Under the common law there is no dower in an equity of redemption. The widow's dower estate cannot exceed the interest of her husband. Harris v. Powers, 129 Ga. 74. (4) If a husband pays off a mortgage the dower interest of his widow is increased proportionately; if his administrator does so, the widow's dower rights increase correspondingly, because the administrator stands in decedent's shoes in that regard. But the widow has no right to demand that such payment be so made in order to protect her dower. 17 C. J. 482; 14 Cyc. 922; Adams v. Adams, 183 Mo. 409.

OPINION

Walker, P. J.

This suit was brought in the Circuit Court of Schuyler County, June 8, 1922, to partition certain land owned by James A. Martin at the time of his death, consisting of two hundred and seventy-five acres, more or less, situate in Schuyler County and described as follows:

The northwest fourth of the southwest quarter of Section 13, also the southeast fourth of the northwest quarter and the south half of the southwest quarter (except five and one-half acres in the southeast corner thereof) of Section 14, also the south half of the northeast fourth of the southeast quarter and the east half of the southeast fourth of the southeast quarter of Section 15, also the east half of the northeast quarter of Section 22, all in Township 66, Range 14.

James A. Martin died seized in fee and possessed of said land and left surviving him his widow, Lulu Martin, and eleven children, viz.: Alvy Lou Martin, Alonzo F. Martin, Elmer Martin, Clarence Martin, Everett Martin, Dee Martin, Zelman Martin, Effie McNary, Agnes Bounds, Della Wellfort and Ruby Boggs.

At the time of his death James A. Martin occupied said land as a homestead, and his widow and minor child, at the time of the institution of this suit, had a homestead right in the same, and in addition his widow was entitled to a dower interest therein.

During his lifetime James A. Martin executed the following notes secured by deeds of trust, to-wit:

One note, dated January 15, 1918, payable to the order of John C. Mills, for $ 2,900, with eight per cent compound interest from date, and signed by Clarence Martin, Kate Martin, Lulu Martin and James A. Martin, and secured by a second deed of trust on one of the tracts of the aforesaid land, to-wit: The south half of the southwest quarter of Section 14, Township 66, Range 14; which note was transferred to the defendant, Schuyler County Bank.

One note, dated January 15, 1918, due January 15, 1923, payable to the order of John C. Mills for $ 2,600, with six per cent interest from date to maturity and eight per cent compound interest thereafter, signed by James A. Martin and Lulu Martin, and secured by a first deed of trust on one of the tracts of the aforesaid land, to-wit: The east half of the northeast quarter of Section 22, Township 66, Range 14; which note was transferred to the defendant, Keokuk Savings Bank.

One note, dated January 15, 1918, due January 15, 1923, payable to the order of John C. Mills for $ 2,600, with six per cent interest from date to maturity, and eight per cent compound interest thereafter, signed by James A. Martin and Lulu Martin and secured by a first deed of trust on one of the tracts of the aforesaid land, to-wit: The east half of the southeast fourth of the southeast quarter of Section 15, and the south half of the southwest quarter of Section 14, all in Township 66, Range 14; which note was transferred to the defendant, Hill-Dodge Banking Company.

Prior to the institution of this suit letters of administration on the estate of James A. Martin were issued by the Probate Court of Schuyler County to Clarence Martin, and said administration has ever since been and is now pending.

On June 8, 1922, two days after this suit was brought, the plaintiff, Alvy Lou Martin, and his wife, executed a promissory note, dated June 10, 1922, due on demand, payable to Edward Higbee, for $ 1,000, bearing eight per cent compound interest from date, and secured by a deed of trust conveying their right, title and interest in and to all the land first above described. This note remains the property of Edward Higbee.

The defendant Dee Martin, when this suit began, was a convict, confined in the State Prison of Iowa, and is represented herein by his trustee, Clarence Martin.

The defendant Zelma Martin is a minor and is represented here by her guardian ad litem, Lulu Martin, her mother.

On October 3, 1922, the Circuit Court of Schuyler County made and entered of record its interlocutory judgment, finding and adjudging that James A. Martin, deceased, owned the lands first above described; that his widow, Lulu Martin, was entitled to dower therein; that, subject to her dower and the trust deeds, the heirs were each entitled to an undivided one-eleventh of said lands; and commissioners were appointed to set off the dower and make partition of the same in kind if practicable, and, if not, to so report.

Thereafter, on October 13, 1922, the commissioners filed their report, therein appraising said lands as follows, to-wit: E 1/2 of NE qr., 22-66-14, $ 8,000; S 1/2 of SW qr. (less 5 1/2 a.) in 14-66-14, and E 1/2 of SE 1/4 of SE qr., 15-66-14, and S 1/2 of NE 1/4 of SE qr. of 15-66-14, $ 9,600; SE 1/4 of NW qr., 14-66-14, $ 4,000; NW 1/4 of SW qr., 13-66-14, $ 2,400; Total, $ 24,000.

After setting off, as the dower of the widow, the east half of the northeast quarter of Section 22, Township 66, Range 14, the remainder of said land was declared not susceptible of partition in kind, and it was recommended that it be sold and the proceeds distributed among the parties according to their respective interests.

November 11, 1922, the court made and entered of record a judgment wherein it confirmed the report of the commissioners and ordered that the land -- except that part set off as the widow's dower -- be sold, and the proceeds, after the payment of costs, be applied to the payment of the notes executed by Lulu Martin, and the satisfaction of the encumbrances given to secure the same, and for the distribution of the balance of the proceeds among the parties to this action, according to their interests.

December 27, 1922, the court set aside its judgment of November 11, 1922, and made and entered of record another judgment and order of sale, wherein it confirmed the report of the commissioners and found and adjudged that each heir of James A. Martin was the owner in fee of an undivided one-eleventh of the land described therein, and that Lulu Martin, his widow, was the owner of homestead and dower interests therein, as set off to her by the report of the commissioners, by which there was admeasured to her the east half of the northeast quarter of Section 22, Township 66, Range 14, Schuyler County; and that the land described in the plaintiff's petition, excepting that part set off to the widow as her dower and homestead, was not susceptible of partition in kind; and it was ordered that the sheriff, after notice, sell the land at public sale as therein required and report his proceedings to the court.

Thereafter all of said land (except the dower and homestead tract) was sold by the...