Moran v. Stewart
| Decision Date | 10 December 1912 |
| Citation | 151 S.W. 439,246 Mo. 462 |
| Parties | ANGIE MORAN, Appellant, v. SAMUEL B. STEWART |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
James W. Boyd and James M. Rea for appellant.
(1) Sec. 367, R.S. 1909, provides that the value of the whole dower to her belonging from the time of her husband's death, if he died seized in land, until the day she shall recover her dower, shall be assessed as her damages. This court has from the earliest days held this statute to mean what it says, so that the defendant in the assessment of damages would not be entitled to any abatement of the amount thereof on account of any improvements, which he may claim he put upon said premises. Rankin v. Oliphant, 9 Mo 241; McClanahan v. Porter, 10 Mo. 749; Graves v Cochran, 68 Mo. 77; Gentry v. Gentry, 122 Mo 218; Smith v. Stephens, 164 Mo. 422; Riley v. Clamorgan, 15 Mo. 203; Thomas v. Hesse, 34 Mo. 13; Thomas v. Mallinckrodt, 43 Mo. 58; Rannels v. University, 96 Mo. 226; Gore v. Riley, 161 Mo. 238; Brown v. Woody, 98 Mo. 259. (2) The judgment of the court in overruling the exceptions to the report of the commissioners and then in hearing the evidence as to the rents and profits received by the defendant from said 500 acres of land and then holding and deciding that the plaintiff was not entitled to anything at all out of said rents and profits must be based on the theory that the widow should be charged with the rents of the homestead before her dower was assigned. As a matter of fact she cannot be charged therewith. She held the homestead up to the time the dower was assigned free, and up to that time under the statute hereinabove referred to she was entitled to the rents and profits of every acre of land of which David Moran died seized. Hence, the judgment of the court ought to be reversed and this court ought to direct the circuit court to enter judgment for the appellant for one-third of the rents and profits the respondent received from said 500 acres of land without giving him any improvements he may have made or even any taxes which he may have paid thereon. (3) Had the appellant waited for ten years after the death of her husband to institute a proceeding for the recovery of dower in real estate her claim to dower would have been barred. R.S. 1909, Sec. 391. "All actions for the recovery of dower in real estate, which shall not be commenced within ten years from the death of the husband, through or under whom such dower is claimed, or demanded, shall be forever barred." Robinson v. Ware, 94 Mo. 678; Harrison v. McReynolds, 183 Mo. 533. Now, if the appellant could not have maintained an action for dower after the lapse of ten years, can the respondent after a lapse of eleven years inject into appellant's suit for dower his claim that she ought not to have dower in the lands in which he has during all that time enjoyed possession, and ask that she be fubbed off with the home place and without any damages in the way of rents and profits?
Booher & Williams and Vinton Pike for respondent.
(1) If the widow's possession and occupancy was an acceptance of the marriage contract provision, she is estopped to claim dower. If her possession and occupancy was under her quarantine right, then she held for and under the heir, and her possession could not be adverse, as this court has so often held. Brown v. Moore, 74 Mo. 633; Null v. Howell, 111 Mo. 273; Fischer v. Siekmann, 125 Mo. 177; Melton v. Fitch, 125 Mo. 290; Carey v. West, 139 Mo. 146; Westburger v. Gallencamp, 154 Mo. 28. (2) It was provided by the Statute of Merton that she should recover her dower with damages from the death of her husband. "But the statute gave such damages against the tenant only on his being convicted of deforcement and as he who was always ready to assign dower could not be convicted of deforcement, he was allowed to plead tout temps prist; and the widow, in order to convict him of deforcement was obliged to reply that she had made demand of dower, and it had not been assigned to her." Woodruff v. Brown, 17 N.J.L. 259; Driskill v. Hanks, 187 B. Mon. 855; McLaughlin v. McLaughlin, 20 N.J.Eq. 190; Grayson v. Moncure, 1 Leigh (Va.), 452. (3) When the report of the commissioners gave her the identical land for homestead and dower which she had enjoyed "under her homestead and dower right" since the death of her husband, the controversy was at an end. There was nothing left to do. Plaintiff had not been deforced of her dower; she had not been compelled to sue; dower had not been unfairly assigned, and she had actually secured her dower forthwith.
Action by widow for dower and damages for deforcement thereof. From a judgment assigning dower and rejecting her claim for damages, she appeals.
On February 5, 1891, David Moran, seventy years old, with two adopted children, but no lineal heirs, was united in marriage with the plaintiff then a lady of thirty summers. They resided in Andrew county, where the husband was possessed of two farms, one of 500 acres, and the other a smaller tract of 106 acres.
On the smaller farm, these victims of the designing Cupid made their home until thirteen months later, when the Grim Reaper, unmindful of the achievements of the aforesaid Cupid, and with a shameless disregard for connubial felicity, entered the Moran home and wantonly struck down the doting husband.
When the funeral was over, it was discovered that Moran had devised all his lands to his adopted children except a life estate in the 106-acre tract.
By an antenuptial contract, Moran, in consideration of marriage, settled upon plaintiff the 106-acre tract, "during her life or widowhood;" and in consideration of rights acquired by that settlement, she agreed to waive all claim to dower and homestead in the real estate of her husband. [See 173 Mo. 211, for copy of contract.]
However, the plaintiff was not at all satisfied with such rights in the 106-acre tract as were given to her by the marriage contract; and during the last twenty years has assiduously sought to enlarge her estate in the realty of her deceased husband. This is her fifth appearance in this court in her efforts to acquire more property than she agreed to accept in full satisfaction of her marriage with Moran. [See 122 Mo. 295; 132 Mo. 73; 151 Mo. 555; 173 Mo. 207.]
On the 27th day of November, 1899, she instituted this action against the adopted son of her husband for dower in the 500-acre tract occupied by him; and also claimed damages for the deforcement of her dower in that tract.
Defendant pleaded the marriage contract as a bar to plaintiff's dower; but this court held that said contract was not based on a sufficient consideration, and did not bar the plaintiff's right to dower. The first appeal in this particular cause resulted in a reversal and remanding of the cause for new trial. [Moran v. Stewart, 173 Mo. 207, 73 S.W. 177.]
On May 25, 1903 (after the cause was remanded by this court), defendant amended his answer so as to admit the plaintiff's right to dower in the 500-acre tract occupied by him; but asserted that he had made several thousand dollars worth of permanent improvements on the property since the death of Moran, and prayed that the value of these improvements be deducted from any dower that might be assigned to her. Defendant in his amended answer also averred that plaintiff was entitled to dower and homestead in the 106-acre tract occupied by her. That the said 106-acre tract was equal in value to one-third of all the real estate of her deceased husband, and prayed that dower be assigned to her in all the real estate of deceased, including the 106-acre tract.
In plaintiff's reply, she alleges that since the death of her husband, she has held the 106-acre tract "by virtue of her right of homestead and quarantine."
On November 12, 1903, both parties, after waiving a jury and admitting "the facts set up in the pleadings," submitted the case to the court. The court found the issues in favor of plaintiff, and that she was entitled to dower in the 500-acre tract, with damages for the detention thereof; also that she was entitled to both dower and homestead in the 106-acre tract.
The court then appointed appraisers to view the property and set off to plaintiff, first, a sufficient amount of the 106-acre tract to equal $ 1500 in value as her homestead, and also a sufficient amount of the remaining lands occupied by the plaintiff and defendant to equal one-third of all the real estate of the deceased, said one-third to include the amount set off as homestead.
At the same time the court also made an order directing the commissioners that in ascertaining the value of the different tracts of land owned by the deceased, they should not consider any permanent improvements placed upon the lands since the death of Moran.
On February 23, 1904, the commissioners filed their report reciting that they had set off plaintiff's homestead in the 106-acre tract and also the remainder of said 106-acre tract in full of her dower in all of her late husband's lands.
When this report was filed, the plaintiff filed objections thereto, alleging among other things that the commissioners had placed a value on both tracts of land as of the date of the death of David Moran; that said lands had greatly increased in value since his death, and that the commissioners should have awarded the plaintiff one-third in value of all of said lands at the date of the assignment of her dower and homestead.
By what we suppose is the bill of exceptions in this cause, it appears that the plaintiff's objections to the report of the commissioners were overruled by the...
To continue reading
Request your trial