McFarland v. McFarland

• Decision Date: 28 March 1919
• Docket Number: No. 20108.,20108.
• Citation: 278 Mo. 1,211 S.W. 23
• Parties: McFARLAND v. McFARLAND et al.
• Court: Missouri Supreme Court

211 S.W. 23

278 Mo. 1

McFARLAND v. McFARLAND et al.

No. 20108.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Rehearing Denied April 7, 1919.

Appeal from Circuit Court, Nodaway County; Charles H. Mayer, Judge.

Action by Lou McFarland against Selena McFarland and others. From an adverse judgment, the plaintiff and the named defendant appeal. Reversed and remanded.

Plaintiff, Lou McFarland, the widow of Seth McFarland, deceased, instituted this action in said court on February 9, 1916, against the respondents, children by a former wife and heirs at law of Seth McFarland, who died seized of an estate of inheritance in the lands in controversy May 15, 1904. The land embraced about 200 acres in Nodaway county.

The petition, after stating these facts, proceeds as follows:

"Plaintiff further states that by reason of said marriage, and by reason of the facts herein recited, upon the death of the said Seth McFarland she became entitled to dower in the above-described land, and that dower has not been heretofore assigned her, nor has she at any time relinquished her right to dower in the manner provided by law, nor has she received any equivalent therefor. Plaintiff says that ever since the death of the said Seth McFarland until the 24th day of July, 1915, she and all of the defendants, as the children of the said Seth McFarland, held and enjoyed said lands as tenants in common, apportioning among themselves the rents, issues, and profits thereof among themselves according to their respective interests therein, plaintiff receiving from said rents the value of her dower interest in the same, but that on the said 24th day of July, 1915, the defendants denied to plaintiff any further right or interest in said lands and now seek to convert plaintiff's said dower interest to themselves, and now deny plaintiff's right therein, and seek to wrongfully deforce plaintiff of her dower right in said land, and have done so since the said 24th day of July, 1915, to plaintiff's damage in the sum of $300.

"Plaintiff says that the monthly value of the lands and profits of her said dower estate is $50. "Wherefore plaintiff prays judgment for $300 damage for said deforcement and $50 per month for the monthly rents and profits of her said dower interest from the rendition of judgment, and for the admeasurement and assignment of her dower in said lands, and for all other and proper relief."

The defendants answered, pleading, among other Things, the following:

"Further answering these defendants allege that the right of the plaintiff to dower, if any, in the real estate of which their father, Seth McFarland, died seized of an estate of inheritance, is barred by limitation under section 391, R. S. Mo. 1909."

The plaintiff replied by general denial, and pleaded affirmatively as follows:

"For further reply, plaintiff says that at all times after the death of her said husband, in 1904, until the month of July, 1915, she, as such widow, and the defendants, as the heirs of her said husband, continued in the possession of said lands in common, the defendants at all times conceding and recognizing the dower rights of plaintiff, and each year during the whole of said time paid to her one-third of the rents of the lands as for the yearly income of her said dower, and that they at no time denied plaintiff's said right, nor held or claimed to hold said lands adversely to her, ail as is set out in plaintiff's petition.

"Plaintiff says that by reason of the matters herein, and in her petition stated, her dower in said lands is not barred by section 391, H. S. 1909.

"For further reply plaintiff says that because of the defendants' conduct in recognizing and conceding plaintiff's dower right during the whole period of limitation fixed in said section, as is stated herein and in her petition, the defendants are estopped from now asserting that her right of dower is barred by Aid section No. 391.

"Further replying, plaintiff says that, if said section No. 391 by its terms bars plaintiff's right of dower in 10 years after the death of her husband, regardless of the fact that she has been in possession of the lands, with the heirs, and her dower right fully recognized, and with no adverse possession claimed against her, the said section is violative of the Constitution of the state of Missouri, and is therefore void and of no effect."

When the cause came on for trial, Salena McFarland, of unsound mind, was made a defendant. George P. Wright, an attorney at the bar, was appointed by the court her guardian ad litem, and filed an answer which is not set out in the record. The cause was submitted on an agreed statement of facts which, so far as it affects the matters at issue in this appeal, states that plaintiff is the widow of Seth McFarland, and the defendants are his children by his wife who died in 1900. He was married to plaintiff in 1902, and died May 15, 1904, without having any children by her.

The land in which plaintiff seeks to have dower assigned was a part of a large tract of which one John McFarland died seized of an estate of inheritance in 1872, leaving his widow, the defendant Salena McFarland, and eight children, among whom were Seth McFarland and J. E. McFarland, who afterward acquired the interest of the other children subject to the dower interest in the entire tract of the defendant Salena, who at the time of the trial was 83 years old. Seth and J. E. afterward partitioned the land between themselves, the former acquiring the entire title of the land in question, subject to the rights, if any, of their mother, Salena. A small tract of the land was omitted from the deeds made in this partition, but it is admitted that the equitable title was in Seth at the time of his death, so that the omission is unimportant.

With respect to the dower of Salena McFarland:

"The facts are that for a number of years after the death of her husband she lived upon said 314 acres of land and managed the same. Finally she discontinued her management of the farm, and thenceforward the possession of said lands was turned over to the said Seth McFarland and J. E. McFarland, each assuming charge of that part of said 314 acres which was deeded to him in said voluntary partition. From that time forward each paid the said Salena McFarland an annuity of $100 per year, and each paid all the taxes on the land occupied by him and kept up and constructed improvements thereon, without any contribution from the said Salena McFarland; it being the understanding that the payment of said annuity and taxes and the keeping up and construction of said improvements should be, and it was, accepted by the said Salena "McFarland as the income from her dower interest in said lands. The said Salena McFarland has never relinquished her right of dower in any of said lands or conveyed the same, and there has been no possession of any of said lands on the part of any of the parties to this litigation hostile or adverse to her claim of dower therein, and unless said claim is barred by section 391, R. S. Mo. 1909, in the same manner as the claim of dower on the part of plaintiff is asserted by the defendants to be barred, then the said Salena McFarland likewise has dower in said land."

With respect to the dower of the plaintiff, the agreed statement is as follows:

"Immediately following the death of the said Seth McFarland the widow and children took possession of said lands in the sense that the "children as heirs were all mutually recognized, and through E. H. McFarland, one of the defendants and one of the heirs of Seth McFarland, the land was rented for and in behalf of all in accordance with their respective rights as they believed them to be, from year to year. It was known to all of them that the widow had a dower interest therein, which they understood to be a one-third interest for life, and during all the time from the death of the husband in 1904, down to the month of July, 1915, all of the heirs fully recognized this dower right of the widow; neither the widow nor any of the heirs knowing that there was a dower statute of limitations. They paid to her each and every year one-third of the net proceeds of the rents of the land, and divided the other two thirds among the children in equal shares. None of them lived upon or occupied the land at any time, but during all the time kept it rented as above stated. The heirs at no time prior to 1915 ever denied plaintiff's dower right and never at any time held the land, or claimed to hold it, adversely to her rights as doweress.

"On July 24, 1915, the defendants, through their attorneys, notified plaintiff, in writing, that her right of dower in said lands was barred by the statute of limitations, and from that date they have denied to her any interest in the lands, and have claimed to hold it adversely to her, and have collected the rents for the year 1915, amounting to $725, and have not paid to her any part of the same.

"Plaintiff filed this suit, praying for the assignment of dower, on the 9th day of February, 1916, more than 10 years after the death of her husband. The lands remain unsold and unconveyed since the death of the husband, and there is no question involved because of the rights of any purchaser. The sole question is, as between the widow and the heirs, Is her right of dower barred by the statute of limitations, under the above facts?"

Upon these facts the court held that both plaintiff and defendant Salena McFarland are barred by the provisions of section 391 of the Revised Statutes of Missouri 1909 by reason of the fact that no action for the recovery of dower was commenced by the plaintiff within 10 years from the death of her husband on May 15, 1904, and that no action for the recovery of dower was brought by the defendant Salena McFarland within 10 years from the death of her husband in 1872, and so adjudged, and that they take nothing by reason thereof, and also adjudged the costs...