Martin v. Trail
| Decision Date | 14 December 1897 |
| Parties | Martin et ux., Appellants, v. Trail et al |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.
Reversed and remanded.
R. F Porter and J. D. Shewalter for appellants.
(1) The property in controversy having been a reversion in Mary T Graves, wife of George L. Trail, supported and preceded by the life estate of Elizabeth Graves, which life estate did not terminate during the coverture, there was no such seizin in the wife or husband as entitled the husband to curtesy. Williams on Real Property [4 Ed.], p. 219; Broom, Leg. Max. p. 190; 4 Kent's Com. [7 Ed.], star p. 29 and 30; Tiedeman, Real Prop. [1 Ed.], p. 108; Washburn, Real Prop. [5 Ed.], p. 183; 1 Bishop, Law of Married Women, 489, 497; Watkins v. Thorne, 11 Ohio St. 367; Gentry v. Woodson, 10 Mo. 224; Tremmel v. Kleibolt, 75 Mo. 255; McTigue v. McTigue, 116 Mo. 139; Cornwell v. Overton, 126 Mo. 366; Cochran v. Thomas, 131 Mo. 258; Warren v. Williams, 25 Mo.App. 22; Null v. Howell, 111 Mo. 273; Payne v. Payne, 119 Mo. 174; Ferguson v. Tweedy, 43 N.Y. 543; Shores v. Casley, 8 Allen (Mass.), 425; Chew v. Commissioners, 5 Rawle (Pa.), 163; Hinter v. Edge, 23 Pa. St. 305; Stoddard v. Gibbs, 1 Sumner (U.S.), 263; Mackey v. Procter, 12 B. Monroe, 433; Orfurd v. Benton, 36 N.H. 395; Reed v. Reed, 3 Head (Tenn.), 491; Malone v. McLaren, 40 Miss. 161; Redus v. Hayden, 43 Miss. 614; Planters' Bank v. Davis, 31 Ala. 626; Baker v. Flournoy, 58 Ala. 650; Carpenter v. Garrett, 75 Va. 129; Fulton v. Johnson, 24 W.Va. 95; Bogy v. Roberts, 48 Ark. 17; De Term v. Hill, 2 P. Wm. 703. (2) Defendant Trail did not secure any right in the property in controversy under the ex parte partition proceeding had in 1881, introduced in evidence, nor is there anything in such proceedings to interfere with plaintiffs' right of recovery in this action. Cochran v. Thomas, 131 Mo. 258; 2 Black on Judge., sec. 660; Hart v. Steedman, 98 Mo. 452; Flenor v. Driskill, 97 Ind. 27; Kenney v. Philipy, 91 Ind. 511; Case v. Metzenberg, 109 Mo. 311; Lycan v. Miller, 112 Mo. 548; Cranshaw v. Greek, 52 Mo. 98; Conway v. Spalding, 51 Mo. 51; Gwin v. Wagoner, 116 Mo. 143; Clemens v. Murphy, 40 Mo. 122; State Bank of St. Louis v. Bartle, 114 Mo. 276; Throckmorton v. Pence, 121 Mo. 50; Packet Co. v. Sickels, 5 Wall. (U.S.) 580; Weeks on Att'ys [2 Ed.], secs. 120, 121 and 271.
Wallace & Chiles and William Aull for respondents.
(1) In Missouri no seizin is necessary in the wife to support a tenacy by the curtesy in the husband. Reaume v. Chambers, 22 Mo. 36; Harvey v. Wickham, 23 Mo. 112; Stephens v. Hume, 25 Mo. 349; McKee v. Cottle, 6 Mo.App. 416. (2) A judgment in partition can not be attacked collaterally by proceeding in ejectment. Black on Judg., sec. 245; Van Fleet's Coll. Att. on Jud. Proc., sec. 3; Latrielle v. Dorleque, 35 Mo. 233; Brawley v. Ramsey, 67 Mo. 280; Childs v. Shannon, 16 Mo. 331; McDonald v. Frost, 99 Mo. 44; Yeoman v. Younger, 83 Mo. 424; Lewis v. Morrow, 89 Mo. 174; Martin v. McLean, 49 Mo. 361; Waddingham v. Gamble, 4 Mo. 465; Bernecker v. Miller, 44 Mo. 102; Rolfe v. Timmemeister, 15 Mo.App. 249; Rosenheim v. Hartsook, 90 Mo. 357; Myers v. McRay, 114 Mo. 377. (3) A judgment in partition establishes the title to the land which is the subject of the partition, and is final and conclusive upon all parties to the record of such proceedings. Forder v. Davis, 38 Mo. 107; Bobb v. Graham, 89 Mo. 200; Holliday v. Lankford, 87 Mo. 577; Hart v. Steedman, 98 Mo. 452; Akers v. Hobbs, 105 Mo. 127; Beckner v. McLinn, 107 Mo. 277; Ketchmar v. Christman, 128 Mo. 38; Aull v. Day, 133 Mo. 337. (4) A judgment in partition procured by the curator of a minor binds such minor to the same extent as if the minor was adult. R. S. 1879, sec. 3346; R. S. 1889, sec. 7139; Payne v. Masek, 114 Mo. 631. (5) The partition proceedings and judgment offered in evidence by defendant Trail to prove his title to his life estate were competent both under a general denial and the special plea of title made in his answer. Carter v. Scaggs, 38 Mo. 302; Meyers v. Gale, 44 Mo. 416; Davis v. Penler, 65 Mo. 189. (6) Ejectment does not lie by joint action against several defendants holding independently and severally. Sutton v. Casseleggi, 77 Mo. 408.
OPINION
In Banc.
This is an action of ejectment. The petition is in the usual form. The defendants answer separately. Defendant Trail denies the right of plaintiff to the possession of the land. Two of the other defendants answer separately that each is in possession of a separate part of the land as tenants of defendant Trail. The third disclaims any possession or right to possession.
The judgment was for defendants and plaintiffs prosecute this appeal.
The principal facts are matters of record or stand admitted. They are these: John Graves dies intestate prior to December 12, 1853, seized of a large tract of land in Lafayette county. He left surviving him a widow, Elizabeth Graves, and two sons, Thomas R. Graves and David A. Graves. On said day the parties, by deed of partition, divided the land among themselves. The heirs conveyed to the widow as her dower a portion of the land to have and hold during her life, with remainder to the grantors and their heirs. The land in controversy is a portion of the dower lands.
The said Thomas Graves died intestate in 1857, leaving one child, Mary T. Graves, who married defendant Trail. The said Mary had one child by the marriage, Mary W. A. D. Trail, who married Joseph Martin. She and her husband are the plaintiffs in this suit. Mrs. Mary Trail, wife of defendant, died about the year 1871, leaving plaintiff as her sole heir at law. The widow of the said John Graves lived on the land conveyed to her as dower until 1881, when she died.
At the August term, 1881, of the circuit court of Lafayette county, plaintiff, then Mary W. A. D. Trail, by her curator, William M. Green, defendant George L. Trail, and the heirs of the said David A. Graves, by their attorney Wm. M. Green, commenced a suit by petition ex parte for the partition of the said dower land. In this petition the plaintiffs In their prayer for judgment petitioners say: "Plaintiffs desire that partition be made and that one half of said lands be set off to Mary W. A. D. Trail and George L. Trail, to hold according to their respective interests." The petition was heard and the court found that "Mary W. A. D. Trail is entitled to one half of said land subject to the life interest therein of her father George L. Trail." It was thereupon adjudged "that partition of said land be made between the parties aforesaid according to their respective rights as above declared and ascertained by the court." Commissioners were appointed and were ordered to set off to the said Mary one half the land. They reported among other matters: "We allot and set off to Mary W. A. D. Trail, subject to the life interest therein of her father, the following lands." Then follows a description of the land allotted to the said Mary and her father, which is the land in controversy in this suit. The report was approved by the court, which ordered that "partition and division so made by said commissioners is made firm and effectual forever."
The court, at request of defendant, declared as a matter of law that "on the pleadings in the case and the law of this case and the evidence offered, the plaintiff can not recover, and the court will find for the defendants." The judgment was accordingly for the defendants and plaintiff appealed.
As will be seen from this statement there are two well defined legal questions presented by this record: First, the right of the husband to curtesy in a reversion of the wife, dependent upon a life estate; second, was the right of the husband to curtesy conclusively adjudicated by the partition proceedings and judgment?
I. The widow of John Graves was in the possession of the land holding an estate therein for her life, and at the termination of the particular estate the wife of defendant Trail was entitled to the reversion. The wife died before the termination of the particular estate. The first question is, whether or not defendant Trail, the husband, under these facts, was entitled to curtesy in the reversion on the termination of the particular estate, or did the fee vest in the heir of the reversioner?
It is not disputed by counsel for defendant that at common law seizin of the wife during coverture was necessary to entitle the husband to a tenancy by the curtesy upon the death of the wife. Nor do they dispute that at common law an estate by the curtesy only attached to those estates of inheritance of which the wife had actual seizin, a possessio pedis, during coverture. But it is insisted that notwithstanding the common law of England, which is of a general nature, has been adopted in Missouri, yet as seizin is not, under the statutes of Missouri, "a controlling element in the title to real estate," as it was at common law, the rule that seizin was necessary to entitle the husband to curtesy in the wife's land, is not applicable under the changed conditions, and should not be applied.
We may state in the first place that we find nothing in the legislation of this...
To continue reading
Request your trial