Quail v. Lomas
| Decision Date | 22 December 1906 |
| Parties | QUAIL, Appellant, v. LOMAS et al |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.
Reversed and remanded.
Rechow & Pufahl for appellant.
(1) (a) The widow, in connection with the minor children, was entitled to a homestead in the premises. R. S. 1899, sec 3620. (b) In addition to the homestead, she was entitled under section 2944, Revised Statutes 1899, to elect to take a child's part. Rhorer v. Brockhage, 13 Mo.App 397, 15 Mo.App. 21, 86 Mo. 544; Matney v. Graham, 50 Mo. 559; Quick v. Robbins, 34 Mo. 226; Wigley v. Beauchamp, 51 Mo. 544; Newton v. Newton, 162 Mo. 173; Adams v. Adams, 183 Mo. 408; Hill v. Evans, 91 S.W. 1022. (2) Having elected to take a child's part, she became vested in fee simple of an undivided one-seventh interest in the premises in addition to the right of homestead which she already had and all of which she conveyed by deed of trust and of all which, under the trustee's sale, appellant became the owner. Authorities supra. (3) It was error to admit evidence subject to objections. Seafield v. Bohne, 169 Mo. 546.
O. M. Townsend and C. H. Skinker for respondents.
(1) The alleged deed of trust, and the alleged trustee's deed made in foreclosure of the same, not having been incorporated in the bill of exceptions, nor deposited with the clerk, to remain in his custody until after the hearing in the appellate court, are not preserved in the record and cannot be considered by the court. Laws 1903, p. 105; Carp v. Ins. Co., 107 Mo.App. 352; State v. Griffin, 98 Mo. 672; State v. Buck, 130 Mo. 480; State v. Laycock, 136 Mo. 93. (2) Where a special method is prescribed by law for the doing of a thing the maxim, expressio unius exclusio alterius, applies, and by necessary implication forbids and renders nugatory the doing of the thing specified except in the particular way pointed out. Therefore, the act of 1903 which provides that written or printed matter offered in evidence may be preserved for review by the appellate court if called for by the bill of exceptions and properly identified and deposited with the clerk, to remain in his custody, etc., by necessary implication excludes any other method of preserving such evidence. Heidelberg v. St. Francois Co., 100 Mo. 74; State ex rel. v. Fisher, 119 Mo. 344; Ex parte Arnold, 128 Mo. 263; State v. Jackson, 95 Mo. 657; Kansas City v. B. & L. Assn., 145 Mo. 53; Nichols v. Nichols, 147 Mo. 409; Taylor v. Pullen, 152 Mo. 438; State ex inf. v. Lund, 167 Mo. 228; Hemelreich v. Carlos, 24 Mo.App. 273; Binde v. Klinge, 30 Mo.App. 288; McKissick v. Mt. Pleasant Twp., 48 Mo.App. 416; Globe Furn. Co. v. Dist. 7, 51 Mo.App. 549; State v. Holman, 96 Mo.App. 193. And this is the construction which has been given to the act of 1903 by the Court of Appeals in Carp v. Ins. Co., 107 Mo.App. 352. (3) The widow and minor defendants took the homestead as joint tenants, and not as tenants in common, and such homestead cannot be partitioned, nor can the interest of the minors therein be affected by any act or deed of the widow. Canole v. Hurt, 78 Mo. 649; Kochling v. Daniel, 82 Mo. 54; Rhorer v. Brockhage, 86 Mo. 544; Hufschmidt v. Gross, 112 Mo. 649; Gore v. Riley, 161 Mo. 238. (4) Section 3621 of the homestead act and sections 2933 and 2944 of the dower act, Revised Statutes 1899, all relate to the interest which a widow may take in the lands of her deceased husband, are in pari materia, and must be construed together. Sutherland, Statutory Const., sec. 284; State v. Klein, 116 Mo. 265; State ex rel. v. Slover, 126 Mo. 659; Kansas City Brick Co. v. Barker, 50 Mo.App. 60. And should be treated as if they were embodied in one section. St. Louis v. Howard, 119 Mo. 45; Sales v. Barber Asphalt Co., 166 Mo. 667. Chapter 21 Revised Statutes 1899, entitled "Dower," provides various ways in which a widow may be endowed, and while she may elect so as to take her dower in the way which she considers most beneficial to herself, still the interest which she takes in the real estate of her deceased husband, under the provisions of said chapter, is "dower." In section 2944 the Legislature in express terms denominates what the widow takes under said section as dower. The provision is that in lieu of the dower provided for her by section 2933, she may "elect to be endowed absolutely in a share of such lands equal to the share of a child," etc. Therefore, the term "dower" used in section 3621 must be construed to mean what the Legislature has defined to be dower and cannot be restricted to the dower provided for by any one section. The provision is that the commissioners appointed to set out homestead shall, "in cases where the right of dower also exist, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead." This clearly requires the homestead to be deducted from the dower, and has been so construed. Graves v. Cochran, 68 Mo. 74; Bryan v. Rhodes, 96 Mo. 485. And the widow and minor children each being seized, as joint tenants of the entire homestead, the value of the entire homestead must be deducted from the dower. Gore v. Riley, 161 Mo. 238. (5) As the homestead exceeded the widow's one-third interest for life in the lands of her deceased husband, there was nothing for her election to operate upon. Gore v. Riley, supra.
This is a suit for partition of the lands of which John H. Lomas died seized and possessed in Polk county on the 13th day of August, 1900.
Said Lomas died intestate and left a widow, Dicy N. Lomas, and six children, Bertha C., John A., Ellen G., Jesse C., Anne and Carl Lomas, all minors. On the 31st day of August, 1900, letters of administration were granted by the probate court of Polk county to the widow, Dicy Lomas, who duly qualified and took charge of the estate. On the 26th day of November, 1901, said widow made her election to take a child's part of said estate in lieu of dower, and duly acknowledged the same and it was recorded November 27, 1901. On the 26th of November, 1901, said widow filed her application in the probate court of Polk county to have a homestead set off to her and her said minor children, and in due form and time commissioners were appointed, who went on the lands and set apart one hundred and sixty acres, of the value of fifteen hundred dollars, as and for said homestead.
John N. Lomas owned the following lands in Polk county at the date of his death, to-wit: The northeast quarter and the northeast quarter of the northwest quarter and the east half of the southeast quarter and the northwest quarter of the southeast quarter and five acres out of the northeast corner of the southeast quarter of the northwest quarter, all in section 24, township 32, range 24, and the west half of the southwest quarter of section 19, township 32, range 23, about 340 acres.
Out of this tract the commissioners set apart the north half of the northeast quarter and the southwest quarter of the northeast quarter, less five acres on the east side thereof, and the northeast quarter of the northwest quarter and five acres out of the northeast corner of the southeast quarter of the northwest quarter, all in section 24, township 32, range 24.
On the 6th day of June, 1902, the widow, Dicy N. Lomas, borrowed seven hundred and fifty dollars from the plaintiff, and gave her note therefor, payable two years after the date thereof and bearing interest at the rate of eight per cent per annum and on the same day made, executed and delivered a deed of trust to Jesse Wiley as trustee to secure the plaintiff the payment of said note. By said deed of trust the said Dicy Lomas conveyed the entire tract of land above described of which the said John H. Lomas died seized, to secure the payment of said note. Afterwards on account of the default of the said Dicy to pay said note and comply with the conditions of said deed of trust, the trustee therein, Jesse Wiley, proceeded to advertise and did advertise and sell the whole of said real estate at public auction at the courthouse door at Bolivar, the county seat of Polk county, and at said sale, the plaintiff being the highest bidder therefor, the same was struck off and sold to him by the said trustee, and on the 12th day of September, 1903, the trustee executed his trustee's deed conveying all of said real estate to the plaintiff. On the part of the defendants the evidence tended to show that the entire tract of land was worth from three thousand to thirty-five hundred dollars at the time the homestead was set off to the widow and children, and that the homestead tract of one hundred and sixty acres was valued at fifteen hundred dollars. After the death of her husband, the widow built a two-room house on the farm and put up some wire fences around the tract. The plaintiff claiming to have acquired by virtue of his deed of trust from the widow and his trustee's deed foreclosing the same, an undivided one-seventh interest in the said lands, on the 20th of October, 1903, began this suit for partition of the said premises. At the November term, 1903, O. M. Townsend, Esq., was appointed guardian ad litem. Upon the motion of Mr. Townsend, however, showing to the court that A. C. Fink was the regularly appointed and duly qualified guardian and curator of the said minors and upon the voluntary appearance of the said Fink he was permitted to become a party to the suit and to defend the interest of the said minors. The widow filed a separate demurrer to the plaintiff's petition, which...
To continue reading
Request your trial