McClanahan v. Porter

• Decision Date: 31 July 1847
• Citation: 10 Mo. 746
• Parties: McCLANAHAN v. PORTER.
• Court: Missouri Supreme Court

10 Mo. 746

McCLANAHAN

v.PORTER.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM MORGAN CIRCUIT COURT.

HAYDEN, for Appellant. 1. The plaintiff gave no evidence to the jury to show that the said William C. Porter, in his life-time and during her coverture with him, was seized of such an estate in the lands, &c., which were purchased by the defendant under execution, as entitled her to dower therein, or to damages, &c., for not having assigned the same therein; but, on the contrary, the only evidence given by the plaintiff to the jury is, that Green L. Douthit, as sheriff of Morgan county, levied certain executions issued upon judgments of the Morgan Circuit Court against said William C. Porter, N. Porter and Jefferson Porter, upon the lands mentioned in the deeds from him as sheriff, and sold the same to John McClanahan, as the property of all the defendants in said execution, and not as the property of said William C. Porter alone, so that it does not appear what estate the said William C. Porter had in the land when defendant purchased it; whether it was an estate in fee for years, at will, or at sufferance; nor that the plaintiff was the wife of said William C. Porter when the defendant purchased the land; and consequently the jury found against law and evidence, and their finding ought to have been set aside and a new trial granted. 2. That the court erred in permitting the plaintiff to give evidence to the jury conducing to show the value the mills and premises at the time the same were purchased by defendant, and thence down to the institution of this suit; because, among other things, the proof was calculated to mislead the jury, being wholly irrelevant to the issue. See 5 Serg. & Rawle, 289, 290, 291 and following; 3 Mason's R. 374-5, Powell and Wife v. Monson & Brimfield Manufacturing Co.; see 4 Kent, 68, 67, 66, 65, &c. 3. That the court erred in not permitting the defendant to prove that he did not in fact deforce or oust the plaintiff from her dower in the land, and that she might have gotten it without suit (if she were entitled to any), by showing, as he offered to do, by testimony, that from the time he took the possession of the mills, down to his abandonment of the possession thereof, he offered to, and requested the plaintiff, not only to join him in the possession and occupancy of the same, but also requested her to call and get at the mills, from time to time, as the same were produced thereby, more than her just proportion of the rents and profits thereof. See Digest, 1835, § 16, p. 228; §§ 19, 23, 24; 4 Kent, 369, 370. 4. That in this case the plaintiff cannot recover damages from the defendant by reason of his occupancy of the mills, unless he deforced the plaintiff of her dower therein, either by denying her right thereto, or by refusing to permit her to enjoy the same as a tenant in common with him. That the plaintiff in this case, if interested at all in the lands, & c., is interested as tenant in common with him, holding an estate for life, whilst he is tenant in fee; and that thus standing related or interested in the estate as tenants in common, he had the right to the enjoyment of the whole of it unless denied him by his co-tenant, by her demand of her share, and his refusal thereof to her. That one tenant in common, who is in possession of the estate, is not bound to pay rent, either in the shape of the product of the estate or in money, to his co-tenant--each having his undivided right to the possession of the whole estate; and hence it is, that upon principle, neither can demand that one shall be a tenant to hold under the other and pay rent against his will and consent for the enjoyment of that of which he is legally possessed in his own right. 4 Kent, 36, 370-1; 12 Mass. R. 149, 150, &c. Eben Parsons v. Ignatius Sargeant, Coke's Lit. 200, b. 5. That the plaintiff in this case had no right as tenant in common with the defendant or otherwise to demand or have damages of the defendant (even though he had remained in the possession of the mills from the time of instituting the suit down to the finding of the jury), for his possession thereof for the time, if the same were valueless on account of their being out of repair and unfit for use, unless the same were occasioned by the tortious acts of the defendant. That upon principle, his possession in such case is legal, and which the plaintiff could not complain, and therefore, unless by his tortious acts he renders the estate unfit for occupancy or for enjoyment (thereby indirectly denying the use thereof to his co-tenant), he is not responsible in damages. 12 Mass. 68, 69, 70, &c., Elisha Doan v. Daniel Badger; 4 Mass. 574-5, &c., Edward Long v. Sarah Bacon; 5 Serg. & Rawle, 289, 290, 293, Thompson v. Morrow. 6. The appellant will insist that the Circuit Court ought to have given all and every the instructions to the jury as prayed for by defendant, and that the court erred in giving to the jury those which were given to them at the instance of the plaintiff; and also that the Circuit Court ought to have set aside the verdict and have granted defendant a new trial.

NAPTON, J.

This was a suit for dower brought by the appellee, Betsey Porter, in the Circuit Court of Kinderhook county, but afterwards removed to the county of Morgan, and there decided. The petition charged that the petitioner was deforced of her dower in a small tract of land in Kinderhook county, upon which there was a saw and grist mill. A plea was filed and an issue made up, which resulted in a judgment by the court that the petitioner be seized of her dower in said lands, and commissioners were appointed to assign the dower. These commissioners reported that the lands were not susceptible of division, being only valuable on account of the mill which was erected on them. A writ of inquiry was then awarded, and a jury was summoned to ascertain the yearly value of the plaintiff's interest, and to assess the damages she had sustained by reason of the deforcement. Upon this trial, it appeared that this tract of land, with the improvements upon it, had been sold in the life-time of W. C. Porter, the husband of the petitioner, by virtue of two executions against him, and had been purchased at said sale by the defendant, McClanahan. It appeared from the testimony introduced by both parties, that this mill, partly in consequence of back-water from the Osage during the great freshet in that river in 1844 and 1845, and partly from inattention to repair on the part of McClanahan, had become almost or entirely valueless, and the principal part of the testimony on the part of the plaintiff seemed designed to show that this deterioration in value had been occasioned by the negligence of McClanahan, whilst testimony was offered in behalf of McClanahan to show that it was not by any fault of his that the property had become valueless. The defendant also proposed to prove that after the death of Porter, the husband of plaintiff, he had requested and urged the plaintiff to join him in the occupancy of the said mill, or to call at the mill from time time for her proportion of the rents and profits of the same, but this proof was excluded by the court. The court instructed the jury:

“That in assessing the plaintiff's damages, they must estimate the property named in the petition according to one-third of the yearly value thereof at the time of the purchase of the same by the defendant, taking into consideration any deterioration in the yearly value thereof from the time of the alienation down to the time of the commencement of this suit, if such deterioration was not caused by any act or negligence of the defendant; and that they should also assess the damages according to one-third of such value from the time of the commencement of this suit to the time of this verdict.” But the jury were directed, in fixing the yearly value of the property, not to consider any deterioration in the value of said property from any cause whatever which accrued after the commencement of this suit.

Several instructions were asked by the defendant, the object of which was to get an opinion from the court that McClanahan was not responsible for negligence in the management of this property, but that the plaintiff must lose from deteriorations in the value of the property, from whatever cause they originated, provided they were not occasioned by the willful destruction or gross negligence of the defendant. These instructions were refused, and the damages were assessed under the instructions of the court above stated. The proper steps were taken to save exceptions to the opinion of the court, and the case brought here by appeal.

It is well settled that where lands have been aliened during the life-time of the husband, the widow is entitled to dower in such lands according to their value at the time of the alienation, and not according to the increased value they may have acquired since the alienation by reason of the labor or expenditures of the alienee. This rule is however an exception to the general rule on the subject, and has been made to favor the alienee, and place him in a more advantageous position than the heir. It has been adopted on principles of public policy, being calculated to promote the interest of the alienee, and at at the same time not impairing the just rights of the widow. The general rule, which applies to all cases...