Moore v. Mansfield
| Decision Date | 06 August 1926 |
| Docket Number | 24667 |
| Citation | 286 S.W. 353 |
| Parties | MOORE v. MANSFIELD et al |
| Court | Missouri Supreme Court |
Claude R. Ball, of Montgomery City, and Emil P. Rosenberger, of St Louis, for plaintiff.
James F. Ball and W. C. Hughes, both of Montgomery City, for defendants.
This is a proceeding on the part of an heir to set off dower and to recover rents and profits. Cross-appeals were taken from the finding and judgment of the trial court. Defendants, who are husband and wife and assignees in possession of the land subsequently abandoned their appeal, and plaintiff is here on his appeal, as though no cross-appeal had been taken by defendants.
Plaintiff's amended petition, upon which the case was tried, is in two counts. The firs count charges that George Thomas Moore died intestate in 1901, seized and possessed of the 80 acres of land in controversy; that at the time of his death the said Moore occupied said land as a homestead, and left surviving him a widow, Margaret E. Moore, and this plaintiff, born April 6, 1897, who was the only child born of this marriage that the said homestead was the only land deceased owned at the time of his death, and was of less value than $ 1,500; that on October 27, 1903, the said widow intermarried with one Lotton, and on May 18, 1904, she and her husband, Lotton, by quitclaim deed conveyed to the defendants all the right, title, and interest of the former widow of said Moore to said land, and that under said quitclaim deed defendants entered into the possession of said land; that defendants are the owners of dower in said land, and subject to said dower right plaintiff is the owner of said land in fee simple. The prayer is that the title to said land be decreed as above set forth, and that commissioners be appointed to assign and set off to defendants the dower right which they acquired from the widow of the said Moore; or, if it be found by the commissioners impracticable to set off dower, to order the lands sold and to determine the value of the dower interest and distribute the proceeds of the sale between plaintiff and defendants according to their respective rights and interests as found by the court.
Under the second count plaintiff sought to recover judgment against the defendants for the sum of $ 2,776.66, being the alleged value of the rents and profits arising from said real estate from the time defendants went into possession thereof under their quitclaim deed from the aforesaid widow up to the time plaintiff arrived at his majority; it being charged that plaintiff's mother, the widow, forfeited her homestead rights to said land and the joint right of occupancy with plaintiff by her marriage to Lotton in 1903.
Defendants' amended answer to the first count, which was repleaded as answer to the second count, contained a general denial, and the further plea that George Thomas Moore at the time of his death was the owner of said land, subject to an indebtedness secured by a deed of trust placed on said land by the said Moore and wife; that he left as his only heirs at law his wife, Margaret E. Moore, and plaintiff, who is his sole surviving child; that no administration was ever had on Moore's estate, and that said land was the only property owned by the said Moore at the time of his death; that before her marriage to Lotton, in 1903, plaintiff's mother agreed to sell said land to defendants; that on May 15, 1904, she and her husband, Lotton, deeded said land to defendants for a good and sufficient consideration, which included the indebtedness secured by the deed of trust aforesaid; that on the 18th day of May, 1904, full possession of said land was delivered to defendants, who have ever since been in the open, notorious, adverse, and exclusive possession thereof, paying all taxes thereon, and claiming to own the same against plaintiff and all persons whomsoever; that as a part of said consideration said deed of trust was thereafter fully satisfied; that immediately prior to the execution of said deed proceedings were commenced in the probate court to convey plaintiff's title, and guardian's deed therefor was thereafter procured, vesting plaintiff's title to said land in defendants; that the guardian's deed was executed by Lotton, the stepfather, as guardian of plaintiff, and was dated the 27th day of October, 1904. Defendants further pleaded title by limitation under sections 1305, and 1307, R. S. 1919, and stated that after plaintiff had reached his majority, on April 6, 1918, Lotton, the guardian, made final settlement with plaintiff for the amount Lotton received from defendants at the time of the execution of said guardian's deed.
The original reply filed consisted of a general denial. After submission, but before final judgment, plaintiff tendered an amended reply, and asked leave of court to file the same, which request was refused, and exceptions thereto duly taken and preserved.
The court at plaintiff's request declared the law to be that the only title defendants had to the land in question was the unassigned right of dower formerly owned by the widow, and plaintiff was not barred from right of recovery by the statutes of limitations pleaded by defendants, and that defendants acquired no title to said land under the alleged guardian's deed. The court refused to declare the law to be that it could not make defendant John Mansfield any allowance on account of his having paid off the deed of trust on April 28, 1904, amounting to $ 424.
The court entered a judgment in plaintiff's favor on the first count, and awarded the fee-simple title to said land to plaintiff, subject to the unassigned dower right of the widow, now held by defendants. The court further ordered, by consent of plaintiff and defendants, that commissioners be not appointed to set off dower, but that the land be sold and the value of the dower interest of the former widow be determined under the mortality tables, and paid to defendants. The court further adjudged and decreed that out of the proceeds of the sale of the land, after payment of costs, there be paid to defendant John Mansfield the sum of $ 420.662/3, with 6 per cent. interest from April 28, 1904, and the payment of said sum of money was decreed to be a lien on the land; that there be paid to defendant John Mansfield the sum of $ 100, together with 6 per cent. interest...
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