Rankin v. Oliphant

• Decision Date: 31 January 1845
• Citation: 9 Mo. 239
• Parties: RANKIN, BLAIR AND GANTT v. OLIPHANT AND WIFE.
• Court: Missouri Supreme Court

9 Mo. 239

RANKIN, BLAIR AND GANTT

v.OLIPHANT AND WIFE.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

GANTT, for Plaintiffs. 1. The demandants were entitled only to dower of the unimproved value of the premises. 2. That they were only entitled to damages from the time of making demand of dower, i. e. from October 10th, 1843. 3. That the plea filed by defendants below, plaintiffs in error here, was good, and entitled the defendants to costs, and a judgment according to the plea. 4. That the judgment of the Circuit Court was erroneous, both in overruling the plea, and in giving judgment on the case stated.

A. TODD, for Defendant. 1. Eliza Oliphant is entitled to dower in the premises. Rev. Stat. p. 228, § 1. 2. She is entitled to an assignment of her dower, with the benefit of the improvements, and of the increased value of the premises from other causes. Roper on Husband and Wife, 349, 350-4; Kent's Com. 65 to 70; Mason's R. 347; Serg. & Rawle R. 289; 1 Hillard's Abr. §§ 14, 15, 16, on pp, 71-2; and §§ 30 to 33, on pp. 103-4; Park on Dower, 339. 3. She is entitled to damages for detention of her dower since the death of her husband. Rev. Stat. p. 329, § 16. Park on Dower, 305-6. Her husband died seized, and no assignment was made within twelve months thereafter. 4. The defendants below cannot plead tout temps pris. Park on Dower, 305; Roper, 436.

NAPTON, J.

Oliphant and Wife filed their petition in the Circuit Court of St. Louis county, praying for an assignment of dower in certain leasehold estate in the city of St. Louis. The petition set forth, that the said leasehold was for the term of fifty years, from the 31st January, 1834; that it formerly was the property of one Spencer, the former husband of the petitioner, Mrs. Oliphant; that said Spencer died in 1837; that the petitioner had never released her dower in said property, and that Rankin, Blair and Gantt, were in possession of the premises.

The defendants pleaded, admitting the truth of the facts alleged in the petition, but averred that at the December term, 1841, of the Probate Court of St. Louis county, the administrator of said Spencer's estate, by order of said court, sold said Spencer's interest in said leasehold property, to Rankin, for $5000; that the property at this time was wholly unimproved; that Rankin sold a portion to Blair and Gantt, upon which B. & G. erected buildings, and that Rakin built upon his part; that they had no notice of Mrs. Oliphant's claim until just before suit brought; that they then offered her a yearly sum equal to the value of her dower, with damages for detention since notice of her claim; that they now offer the same and bring the money into court, &c.

To this plea there was a demurrer, which was sustained by the court, and the court gave judgment for the petitioners.

An agreement was filed in the case, from which it appeared, that the fact stated in the plea were true, and the annual value of the premises, both when unimproved and since improved, were ascertained, and it was also agreed that the premises were incapable of subdivision.

Judgment was given that the widow be endowed with the improved value of the property, and for damages from the death of her husband. These damages were computed at the rate of one-third of the unimproved value of the premises up to the time of the completion of the improvements, and for the time since elapsed, at the rate of one-third of the improved value.

The defendants took a bill of exceptions, preserving all the facts, and brought this writ of error to reverse the judgment.

The principal question arising from the record is, whether the widow is entitled to one-third of the improved value, or only one-third of the unimproved value of the leasehold estate.

As the common law did not give any dower in an estate less than a freehold of an inheritance, the rights of the petitioner depend solely on the provisions of our statute, the first section of which declares that “dower in leasehold estate for a term of twenty years, or more, shall be granted and assigned as in real estate.” The term real estate, when used in other parts of the Code, is declared to mean any interest in lands, tenements or hereditaments, and is sufficiently comprehensive to embrace that interest, which by the common law was regarded as a mere chattel, and was therefore termed a chattel real. This clause of the first section is therefore inartificially expressed, designing, as it most obviously does, an enlargement of the common law estate in dower, and causing it to embrace chattels real (where the estate was for twenty years), as well as freeholds of in heritance. The grant and the assignment of dower in this leasehold interest, is to be governed by the same principles which regulate its assignment in other cases. We will, therefore, in the investigation of the main question, consider the case as one of a descendible freehold.

It is well settled, that where the husband dies seized of lands, the wife shall be endowed of them according to their value at the time of the assignment; but that where lands have been aliened during the husband's life-time, she shall only be entitled to one-third of their value at the time of the alienation. The reason for this distinction given by the ancient law writers, is that the heir is not bound to warrant, except according to the value of the land as it was at the time of the feoffment, and so the wife if she were to receive according to the improved value, would recover more against the feoffee than he would recover in value against the heir, which would be unreasonable. Coke's Litt. Harg. lib. p. No. 163. The rule is different where the husband dies seized, and the heir or his alienee improves the land, for it is his own folly, and the widow takes the value as it is at the time of the assignment. 2 Johns. R. 484; 13 Johns. R. 779; 6 Johns. R. 266; 11 Johns. R. 510; 13 Johns. R. 179; 4 Kent's Com. 67. The reason given for this distinction in favor of the alienee of the husband, has in several modern cases been doubted or disavowed; but the distinction itself has been uniformly maintained, as founded upon clear principles of justice, and sound views of public policy. 4 Kent's Com. 65.

The case now under consideration, is not the case of an alienation by the husband, nor is it the case of an alienation by the heir, after a descent cast. Hence the principles heretofore established, cannot be conclusive of the merits of the present question. Our statute, which makes leasehold estates dowable, is an innovation upon the common law, and a similar innovation has not, so far as my examination has extended, been made in any other State. Consequently the decisions in England and in the United States, cannot have, except by analogy, any bearing upon the question.

On the one hand, it is contended, that the situation of the plaintiffs in error is precisely similar to that of the alienee from the husband; that the same motives of justice and principles of public policy which induced an exception in favor of the alienee of the husband, would warrant a like exception in favor of the purchasers at the judicial sale; that the statute concerning Administrations, in accordance with the provisions of which this land was sold, favors this interpretation of the act concerning Dower, by declaring that the deed made by the executor or administrator, shall convey “all the right, title and interest, which the husband had at the time of his death, free from his debts,” &c. that consequently this judicial sale relates back to the period of the testator's death, and the purchaser takes his title, as it were, from the testator himself; and that in this case especially, which is only a leasehold interest, as no descent is cast...