Moore v. Hoffman

• Decision Date: 21 May 1931
• Docket Number: 29389
• Citation: 39 S.W.2d 339,327 Mo. 852
• Parties: Mary M. Moore v. Alpha Hoffman et al.; Harry R. Phillips, Trustee in Bankruptcy of Estate of Alpha Hoffman, Appellant
• Court: Missouri Supreme Court

39 S.W.2d 339

327 Mo. 852

Mary M. Moore v. Alpha Hoffman et al.; Harry R. Phillips, Trustee in Bankruptcy of Estate of Alpha Hoffman, Appellant

No. 29389

Supreme Court of Missouri

May 21, 1931

Motion for Rehearing Overruled May 21, 1931.

Appeal from Perry Circuit Court; Hon. Peter H. Huck, Judge Opinion filed at October Term, 1930, March 31, 1931; motion for rehearing filed; motion overruled at April Term, May 21 1931.

Affirmed.

Robb & Robb for appellant.

(1) The widow's right to dower becomes extinct unless an appropriate proceeding for the recovery and admeasurement thereof is commenced within ten years after her husband's death. R. S. 1919, sec. 359; Laws 1927, p. 99; Cave v Wells, 5 S.W.2d 636; Belfast Inv. Co. v. Curry, 264 Mo. 483; Falvey v. Hicks, 315 Mo. 442; Jodd v. Ry. Co., 259 Mo. 239; Edmonds v. Scharff, 279 Mo. 78. And her right to elect to take a child's share in lieu of dower expires when her right to dower expires. Cave v. Wells, 5 S.W.2d 636; Payne v. Payne, 119 Mo. 179; Newton v. Newton, 162 Mo. 173; Von Arb v. Thomas, 163 Mo. 33. And the right to quarantine, being an incident to the right of dower, ceases, when the dower right ceases. C. M. Smith Bros. Land & Investment Co. v. Phillips, 289 Mo. 579. (2) Plaintiff's possession was at no time adverse possession. A widow, whose dower has not been assigned, cannot acquire title by adverse possession against the heirs. Wofford v. Martin, 183 S.W. 603; Belfast Inv. Co. v. Curry, 264 Mo. 483; Melton v. Fitch, 125 Mo. 281; Moran v. Stewart, 246 Mo. 462; Shoultz v. Lee, 260 Mo. 719; Fischer v. Siekmann, 125 Mo. 165. (a) One cotenant cannot gain title by adverse possession against the others unless by open, notorious possession adverse to the others under a claim of ownership. Collier v. Gault, 234 Mo. 457; Golden v. Tyler, 180 Mo. 196; Comstock v. Eastwood, 108 Mo. 41; Coberly v. Coberly, 189 Mo. 1. (b) A permissive possession, or one subordinate to, or in recognition of the true title, is not adverse. Null v. Howell, 111 Mo. 273; McClanahan v. McClanahan, 258 Mo. 579. (c) The fact that one in possession rented the land and collected the rents, is not inconsistent with a permissive possession. McClanahan v. McClanahan, supra; Meier v. Meier, 105 Mo. 432. (3) A resulting trust must arise, if at all, at the instant the deed is taken, and, if no trust then results, it cannot be created by subsequent occurrences. Bender v. Bender, 281 Mo. 473; Thomson v. Thomson, 211 S.W. 52; Weiss v. Heitkamp, 127 Mo. 31. A claim for a resulting trust, in this case, in any event is barred by the Statute of Limitations. Burdett v. May, 100 Mo. 13; Hudson v. Cahoon, 193 Mo. 547. (4) The plaintiff was not entitled to any allowance for improvements. A widow whose dower has not been assigned, occupies the position of a life tenant, and while her unassigned dower right continues, she cannot charge the estate of the remaindermen with improvements. Bldg. & Loan Assn. v. Eveler, 237 Mo. 679; Schorr v. Carter, 120 Mo. 409; Schaffner v. Schilling, 6 Mo.App. 42; Gray v. Clement, 246 Mo. 497, 246 S.W. 940. After her dower right became barred by limitations plaintiff and her daughter, Alpha Hoffman, were tenants in common. One tenant in common cannot bind a cotenant for the cost of improvements. Kansas City Brick Co. v. Pratt, 114 Mo.App. 649. Where the occupant in possession has actual knowledge or information of any fact or circumstance that would put a prudent person on inquiry as to the title, he cannot claim that improvements were made thereon in good faith and without notice, under belief he was sole owner. Brown v. Baldwin, 121 Mo. 106; Richmond v. Ashcraft, 137 Mo.App. 191; Smith v. Mount, 149 Mo.App. 668; Kugel v. Knuckles, 95 Mo.App. 670; Raney v. Ins. Co., 213 Mo.App. 1, 246 S.W. 57. A court of equity will not relieve against a mistake of law, unmixed with a mistake of fact. Price v. Estill, 87 Mo. 378; Schaffner v. Schilling, 6 Mo.App. 42; Kleimann v. Gieselmann, 114 Mo. 445; American Brewing Co. v. St. Louis, 187 Mo. 367; Norton v. Highleyman, 88 Mo. 621; Weinerth v. Trendley, 39 Mo.App. 333. (5) A widow who pays her husband's debts, when not necessary to protect her homestead and dower rights, can have no lien on the land for such payment. Such payment is a voluntary payment. Smith v. Stephens, 164 Mo. 423; Tel. Co. v. Hamel, 153 Mo.App. 404; Kleimann v. Gieselmann, 144 Mo. 437; American Brewing Co. v. St. Louis, 187 Mo. 367; Johnson v. Goldsby, 32 Mo.App. 560. (6) The circuit court exceeded its jurisdiction in this case, and was without authority to make its finding and render its judgment herein. Chap. 2, Sec. 2, Bankruptcy Act; Sec. 57, Bankruptcy Act; Black on Bankruptcy (1926 Ed.) sec. 64; Loveland on Bankruptcy, p. 309; Lumber Co. v. Harvester Co., 215 Mo. 236; Peery v. Carnes, 86 Mo. 656; McFarland Carriage Co. v. Wells, 99 Mo.App. 641; Store Co. v. Railroad, 142 Mo.App. 50.

Sam Bond and Spradling & Dalton for respondent.

(1) The respondent having been continuously in possession of the property since the death of her husband, none of her claims are barred by limitations in this type of action. (a) This is a suit to quiet and determine title for partition. It does not ask for the recovery of real estate or the possession thereof. It does not ask affirmative relief. It seeks simply an ascertainment of the status of the title to the property and rights of the parties. The Statute of Limitations therefore does not apply to the respondent. Armor v. Frey, 253 Mo. 447. (b) The essence of this case being defensive of the possession and ownership which respondent now enjoys, the Statute of Limitations, barring actions constitutes no bar to her claims. Williamson v Brown, 195 Mo. 329; Butler v. Carpenter, 163 Mo. 597; Sebree v. Patterson, 92 Mo. 451. (c) A suit to quiet title under Sec. 1970, R. S. 1919, is not an action to assign dower or establish a resulting trust, but merely to determine the rights, title and interest of the parties in and to the real estate described in view of facts pleaded and proven with reference to what has happened in the past. The judgment or decree establishes no new title, but merely determines what the parties already have. McFadin v. Simms 309 Mo. 312. (d) The sole question for the determination of the court under the first count is, which party has the better title to the real estate in controversy. Hunt v. Hunt, 307 Mo. 375; Deal v. Lee, 235 S.W. 1055; Barr v. Stone, 242 S.W. 664; Bernero v. Trust Co., 230 S.W. 625; Barnett v. Hastain, 256 S.W. 752. (e) Under Section 1970 the court is authorized to award full and complete relief whether legal or equitable to the several parties and to each of them as fully and with the same effect as the court might or could in any other different action. Hill v. Ballard (Mo. Sup.), 148 S.W. 146; Gray v. Clement (Mo. Sup.), 246 S.W. 944. (2) The appellant as trustee in bankruptcy took no better title than Alpha Hoffman, the bankrupt, had in the property. In re Gamble, 14 F.2d 847; Canton Trust Co. v. Durrett, 9 S.W.2d 929; Palmer v. Welch, 171 Mo.App. 600. (3) At the date of adjudication in bankruptcy the real estate in controversy was in the possession of an adverse claimant and was not in the possession or under the control of the bankrupt. It never came into the possession or control of the trustee or of the bankruptcy court. The circuit court therefore had jurisdiction to determine the rights of the parties with reference to the real estate. Eyster v. Gaff, 91 U.S. 521, 525; 23 L.Ed. 403, 405; Bardes v. Bank, 44 L.Ed. 1175, 178 U.S. 524; Frank v. Vollkommer, 51 L.Ed. 911, 205 U.S. 521; Peters v. Bowers (Col.), 158 P. 1101. (4) Appellant is estopped to plead the Statute of Limitations against respondent Mary Moore's right to dower, because appellant is an assignee of Alpha Hoffman, who, immediately upon the death of Hilary Moore, permitted respondent to enter into the exclusive possession and enjoyment of all the real estate of the deceased and to enjoy and receive all of the income thereof for 37 years without interruption or interference. McFarland v. McFarland, 278 Mo. 1; Investment Co. v. Curry, 264 Mo. 500. (5) The fact that Alpha Hoffman had completely abandoned all claim to the property, had publicly denied that she had any interest in the property, had exercised no dominion or control over the property, or paid any taxes, or claimed any share of the income for more than 37 years, and had stood by and let permanent improvements be made, enhancing the value of the property more than $ 7,500, and permitted $ 20,000 in security debts to be paid for her under the assumption that she had no property of her own, now estops her, and also her assignor in bankruptcy (appellant), to make any claim to this property. McFarland v. McFarland, 211 S.W. 27; Secs. 1311, 1305, 1308, R. S. 1919. (6) The fact of common source of title or co-tenancy does not estop respondent to plead and prove title by adverse possession. Saucier v. Kremer, 297 Mo. 461; Waddell v. Chapman, 238 S.W. 481. (7) The lapse of time prior to the appointment of an administrator constitutes no bar to the widow's right of election, she having remained in possession of the property. (a) Sec. 359, R. S. 1919, as amended by Laws 1927, p. 99, affects only the remedy for the recovery of dower and not the right to dower. Respondent could therefore elect to take a child's part under Sec. 324, Laws 1927, p. 99, in lieu of dower, since her right to take a child's part was not barred by limitations under Sec. 325, Laws 1921, p. 111, there having been no administration. Secs. 324, 325, 359, R. S. 1919; Laws 1927, p. 99; Laws 1921, p. 111. (b) The theory of the Statute of Limitations is that it does not affect the right, but simply destroys the remedy for the assertion of the...