SHAIN, P.J.
This proceeding was commenced by a writ of error issued by the clerk of the Supreme Court of Missouri. In compliance with said writ, a transcript of the record was duly lodged in the Supreme Court and on June 12, 1934, the cause was by that court transferred to this court, for the reason that title to real estate was not involved and the amount involved not in excess of the jurisdiction of this court.
A brief history of the case is as follows: The defendant in error, on the 18th day of January, 1923, filed a petition wherein the plaintiff in error and the St. Joseph Stock Yards Company were defendants. A demurrer to the petition was filed by the plaintiff in error and the Stock Yards Company filed answer and cross-bill. The demurrer was overruled and upon hearing a decree on the cross-bill, by way of interpleader, of the Stock Yards Company, was duly entered in favor of said company.
Thereafter, issues were joined by the plaintiff in error, defendant therein, filing answer.
Thereafter, October 7, 1930, a judgment by default was taken in favor of the plaintiff, defendant in error herein, and against the defendant, plaintiff in error herein, and a decree was duly made and entered of record in the circuit court on the above stated date.
Thereafter, December 31, 1930, motion to set aside said judgment was filed by plaintiff in error. This motion was taken up and heard on January 3, 1931, and was by the court denied.
Thereafter, October 2, 1931, the writ of error was issued out of the Supreme Court and the transcript of the record transmitted to that court and thereafter, by order of said court, transmitted to this court, as aforesaid.
No bill of exceptions having been filed, this court must, in the face of the issues as presented, determine the issues raised from the record proper.
The issues presented to this court under assignment are as follows:
"A. The court erred in overruling the demurrer of plaintiff in error to the petition of defendant in error because said petition did not state a cause of action against plaintiff in error.
"B. The decree for defendant in error is not warranted by her petition.
"C. The petition of defendant in error is insufficient to support the decree in her favor."
We set forth herein the petition filed by defendant in error in the circuit court and also the decree of the circuit court in said case.
"PETITION.
"Plaintiff for cause of action against defendants states that defendant, St. Joseph Stock Yards Company, is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri.
"Plaintiff further states that John Donovan, formerly of Buchanan County, Missouri, but now deceased, at the time of his death owned and was seized of the following described real estate, situate, lying and being in the County of Buchanan and State of Missouri, to-wit:
"Lots one (1), two (2), three (3) and four (4) in block eight (8) in South St. Joseph Town Company's Second Addition to the City of St. Joseph, Missouri.
"That said John Donovan died intestate on the ____ day of ____; that he left surviving him his widow, Elizabeth A. Donovan, now Elizabeth A. Duffley, defendant herein, and his daughter Emma D. McCaskey, plaintiff herein; that said John Donovan left surviving him no other child or children, or the descendant of any deceased child or children.
"Plaintiff further states that on January 1, 1906, said John Donovan and Emma Donovan, the then wife of John Donovan, made, executed and delivered, to defendant, St. Joseph Stock Yards Company, their written lease by the terms whereof said John Donovan and Emma C. Donovan, his wife, let and leased to St. Joseph Stock Yards Company the lands and premises hereinabove described, for a term of fifty years, from and including the first day of January, 1906, at a yearly rental of $2,000 for each year of the full term of fifty years aforesaid, payable in monthly installments of $166.66 2/3 each, payable on the first day of each and every month of said term in advance; that among the terms and provisions of said lease is the following, to-wit:
"`Provided, however, that if during the said term the said John Donovan should die, leaving surviving him a widow, all such installments of rent thereafter accruing
during the lifetime of such widow shall be paid to her.'
"Plaintiff further states that said Emma C. Donovan, wife of said John Donovan, at the time of the execution of said lease, as aforesaid, died prior to the death of said John Donovan; that thereafter said John Donovan married defendant, Elizabeth A. Duffley, and that said Elizabeth A. Duffley survived said John Donovan and his widow.
"Plaintiff further states that defendant, Elizabeth A. Duffley, claims to be entitled to rentals accruing under said lease and to all of said rentals, and to have an interest in said lands under and by virtue of said lease and the provisions thereof, hereinabove set forth; that in truth and in fact defendant, Elizabeth A. Duffley, has no interest in or to said lands or the rentals accruing therefrom under said lease.
"Plaintiff further states that defendant, Elizabeth A. Duffley, was not a party to said lease at the time the same was executed, and was not then the wife of said John Donovan, and was not in contemplation of the parties to said lease at the time the same was executed, and that none of the parties to said lease intended by said lease or any part thereof to make any provision whatsoever for defendant, Elizabeth A. Duffley.
"Plaintiff further states that defendant, St. Joseph Stock Yards Company, is made a party defendant herein because of the fact that it was and is a party to said lease, and so that it may become bound by the decree of the court herein respecting the true construction and effect of said lease.
"Wherefore, plaintiff prays the court to ascertain, determine and adjudge the rights and interests of the parties plaintiff and defendants in and to said real estate under said lease above described; that the court will construe said lease aforesaid and ascertain, adjudge and declare the respective rights and interests of the parties hereto in and under said lease and the rentals accruing thereon; that the court will determine and adjudge plaintiff to be entitled to all rentals accruing under said lease; that if the court deems it proper in this action, the court will ascertain and determine the amount of rentals received by defendant, Elizabeth A. Duffley, under said lease, and order and direct the payment by defendant, Elizabeth A. Duffley, to plaintiff of the amount so found and award plaintiff judgment for such amount against said defendant, Elizabeth A. Duffley, and plaintiff prays for all other further and proper relief.
"STROP & SILVERMAN
"Attorneys for plaintiff."
A copy of the lease is attached to the petition as an exhibit. However, as the exhibit forms no part of the pleading, we do not include a copy of the exhibit.
"Decree.
"Now on this day, this cause coming on for hearing, plaintiff appearing in person and by Silverman & Strop, her attorneys and the defendant, Elizabeth A. Duffley, although having been duly notified of the institution of this action, as being duly called, comes not but makes default, and the defendant, St. Joseph Stock Yards Company, appearing by Culver, Phillip & Voorhees, its attorneys, and this cause being taken up and submitted to the court, evidence is heard and the court being fully advised in the premises find that John Donovan, formerly of Buchanan County, Missouri, but now deceased, at the time of his death owned the following-described real estate, situated in Buchanan County, Missouri, to-wit: Lots one (1), two (2), three (3), and four (4), in block eight (8) in South St. Joseph Town Company's Second Addition to the City of St. Joseph, Missouri; that said John Donovan left surviving him his widow, Elizabeth A. Duffley, one of the defendants herein, and his daughter, Emma D. McCaskey, plaintiff herein, as his sole and only heirs at law.
"The court further finds that on January 1, 1906, said John Donovan and Emma C. Donovan, his then wife, executed and delivered to St. Joseph Stock Yards Company, a corporation of Buchanan County, Missouri, their written lease to said real estate above described, for a term of fifty years, commencing January 1, 1906. And the court having seen, considered and examined said lease and all portions thereof and the other evidence adduced herein, doth find that the true meaning, intent and construction of said lease is that the rentals accruing thereunder follow the title to said real estate.
"The court further finds that the dower of defendant, Elizabeth A. Duffley, in the...
