Melton v. Fitch
| Decision Date | 04 December 1894 |
| Parties | Melton et al., Appellants, v. Fitch et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.
Reversed and remanded.
Wm. O Mead and T. T. Loy for appellants.
(1) There is no question but Joseph W. Melton was at the time of his death seized of the premises in question, had his mansion house thereon and there lived with his family, and that the defendant, Francis Watson, is his widow, and that Melton is the common source of title. The seizure of Melton at the time of his death and actual residence upon the premises is sufficient under the law to confer upon his widow dower, and until dower assigned the right to the exclusive possession of said premises as her quarantine both under the statute and at common law. R. S. 1889, sec. 4533; Greenleaf's Cruise's Digest, top page 177, sec. 19 and note 3; Gentry v. Woodson, 10 Mo. 224; Warren v Williams, 25 Mo.App. 22; Eldredge v. Farestall, 7 Mass. 253; Embree v. Ellis, 2 John. 123. (2) And she or her assignee may defend such possession against the heirs (the plaintiffs) or their assignees, and if ousted of such possession may maintain an action in ejectment to recover it. Jones v. Manly, 58 Mo. 559; Roberts v. Nelson, 86 Mo. 21. The defendants Fitch as grantees of the widow succeed to her rights and none other, and may make the same defense of their possession and regain the possession if ousted as the widow might if she had never conveyed to them and none other. Hickman v. Link, 97 Mo. 490; Jones v. Manly, 58 Mo. 559. (3) There can be no adverse holding by the defendants Fitch, grantees of the widow, as against plaintiffs who are heirs of Joseph W Melton, deceased, until dower is assigned or until the death of the widow. Brown v. Moore, 74 Mo. 633; Robinson v. Ware, 94 Mo. 687; Holmes v. Kring, 93 Mo. 452; Sherwood v. Baker, 105 Mo. 478. (4) And the defendants having entered into the possession in right of the widow's dower and quarantine, their holding was in privity with plaintiffs', and that fixed the character of their possession and holding afterwards, and nothing they could say or do could change the character of that possession so as to make it adverse to plaintiffs. Keith v. Keith, 80 Mo. 125; Salmon v. Davis, 29 Mo. 176; Christer v. Gage, 71 N.Y. 192; Tyler on Ejectment and Adverse Enjoyment, p. 860. (5) The order of sale made by the probate court nor the notice of sale upon which the administrator's deed is based, describe the northeast quarter of southeast quarter, section 27, township 30, range 20, hence the sale and deed for that forty acres is void for that reason. Evans v. Snyder, 64 Mo. 516; Greene v. Holt, 76 Mo. 677. (6) The notice of sale by the administrator, according to the record, was published, first June 20, 1864, and last July 4, 1864; the publisher of the paper made affidavit to such publication July 30, 1864, for the sale on the fifteenth day of August, 1864. Such notices are required to continue up to the day of the sale, and failure to do so renders the sale void. Stine v. Wilkerson, 10 Mo. 96; Bank v. Stumpf, 6 Mo.App. 17; Bank v. Stumpf, 73 Mo. 311. (7) The administrator of Melton having made his final settlement and been discharged by the probate court on the sixth day of June, 1866, had no power to make a valid report of sale, and the probate court had no jurisdiction to approve the same on the twenty-third day of November, 1866, as was done in the proceedings upon which the administrator's deed is bottomed. State v. Stephens, 12 Mo. 182; Goebel v. Foster, 8 Mo.App. 443; Garner v. Tucker, 61 Mo. 427; Rorer on Judicial Sales [2 Ed.], sec. 106. Hence the administrator's deed is void.
Goode & Cravens for respondents.
(1) The widow having acquired by administration sale the title in fee simple absolute to the mansion house and the south forty acre tract on which it stood, her quarantine was extinguished. She held thereafter as owner in fee, not in virtue of the quarantine right. Where a greater and lesser estate vest in the same person the latter is merged. (2) When the widow acquired the mansion house in fee she could have no quarantine in the north forty acre tract, even though, on account of an error in description, this did not pass by the administration sale; for the plantation is held by the widow, under the statute, only as an incident to and in connection with the occupancy of the mansion house. Unless the mansion house is occupied by virtue of the quarantine right there is and can be no quarantine occupation of the messuage and plantation. McKaig v. McKaig, 25 A. 181; Sharpley v. Jones, 5 Harring. 373; Clay v. Sanders, 47 Ala. 287; Ogbourne v. Ogbourne, 60 Ala. 616; McClurg v. Turner, 74 Mo. 44; Roberts v. Nelson, 86 Mo. 21. (3) The only right the widow had then in the north forty acres (if she did not obtain title thereto by the administration sale) was that of dower. She executed to Fitch a deed purporting to convey the fee in 1874; he and his wife had been in open, notorious, adverse and exclusive possession from that time until this action for assignment of dower was begun in 1889 -- more than fifteen years. It was, therefore, barred. Robinson v. Ware, 94 Mo. 618; Beard v. Hale, 95 Mo. 16. (4) The attacks on the administrator's deed so far as the north forty acre tract is concerned are without merit. The law in force when it was made provided that the probate court might by order dispense with the posting of notices. R. S. 1855, chap. 2, art. 3, sec. 27. (5) It is apparent, then, from the entire record, the recital in the order of approval of November 23, 1866, that a report of the sale had been theretofore made, the filing of the appraisement, of the proof of publication, of the notice of sale and the carrying of the purchase money into the final settlement, that the action of the probate court must be considered as an approval, although no formal entry thereof was made. On precisely these facts it was said: "Held, that the action of the court must be considered as an approval, although no formal entry of such approval appeared." Grayson v. Weddle, 63 Mo. 523; Henry v. McKerlie, 78 Mo. 416; Camden v. Plain, 91 Mo. 117. The deed made after final settlement was valid. Wilkerson v. Allen, 67 Mo. 502. (6) The order, notice of sale, appraisement and deed, all, beyond dispute, correctly describe the south forty acres. So had there been no approval nor deed at all, the purchaser, Frances Watson, had a perfect equity as to said forty acres, which she conveyed to the defendant Fitch. This equity would suspend in her favor and in her grantees, a recovery of dower or any other estate, until the purchase money and all expenditures for improvements were repaid. Henry v. McKerlie, 78 Mo. 416.
This is an action by plaintiffs, heirs of Joseph W. Melton, deceased, against their mother, Frances Watson, Nancy Fitch, and George Fitch, her husband, for the purpose of having the dower of the defendant Frances, as the widow of Joseph W. Melton, deceased, admeasured and set off to her in the following described tracts of land in Greene county, to wit: The northeast quarter of the southeast quarter and the southeast quarter of the southeast quarter of section 27, township 30, range 20, upon the south forty of which said Joseph resided at the time of his decease in January, 1863.
Frances Watson filed no answer, while that of Fitch and wife admitted possession and pleaded the ten year statute of limitations. To the answer of the Fitches plaintiffs replied, denying that their possession had been adverse, averring that their only title was derived from Frances Watson, their codefendant, and that at the time she conveyed to them she had no other right or title than dower and quarantine, and that defendants Fitch claiming under her are estopped to deny the title of Joseph W. Melton, deceased.
The trial resulted in favor of defendants, dismissing plaintiffs' petition and judgment against them for costs, from which they appeal. The facts are about as follows:
In February, 1863, John H. Aiken was duly appointed administrator of the estate of Joseph W. Melton. Afterwards the land of the estate was ordered sold by the probate court to pay debts. The order of sale erroneously described the north forty as the northwest quarter of the northeast quarter, instead of the northeast of the southeast, but correctly described the southeast of the southeast. The same mistake occurred in the notice of sale. The two forties were both correctly described in the appraisement, report of sale, its approval and administrator's deed. The purchaser, at the administration sale, was the widow of Joseph W. Melton and mother of plaintiffs, Frances Watson, the defendant, to whom dower is sought to be assigned. Aiken made her an administrator's deed. The payment of the purchase money by said Frances Melton to the administrator is shown by his report of same, filed February 27, 1866. After this purchase, Frances Melton lived on the land for more than eight years, and then sold it to the defendants Fitch, who have been in the open, notorious and exclusive possession ever since, claiming to own it against all others. They have put it in cultivation, fenced it, substantially rebuilt the house where Melton died, erected outbuildings and set out fruit trees.
The plaintiffs showed title in Joseph W. Melton to the southeast of the southeast of section 27 by original entry, November 26, 1856. But failed to show any legal paper title in him to the other forty, the northeast of the southeast. The original entry of this forty was by Henry S. Kennedy, February 5 1841, who conveyed it to Samuel Peper, November 5, 1841, and the paper title, from aught that appears, still remains in him....
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