Riddick v. Walsh

Decision Date31 March 1852
Citation15 Mo. 519
PartiesRIDDICK v. WALSH.
CourtMissouri Supreme Court

APPEAL FROM ST. LOUIS CIRCUIT COURT.

On the 12th of August, 1812, the plaintiff was married to Thomas F. Riddick, with whom she lived as his wife until the 14th of January, 1830, when he died. On the 8th of October, 1814, Felicite Marle, of the territory of Missouri, conveyed by a deed of bargain and sale to Thomas F. Riddick of the same place, a lot in St. Louis, particularly described in the petition, fronting one hundred and twenty French feet on the west side of Fourth street, and running back westward of that width, one hundred and fifty French feet. On the 12th of May, 1818, the plaintiff and her husband mortgaged the lot to Alexander Stuart, which mortgage was, on the 13th of the same month, duly acknowledged by the plaintiff and her husband. On the ___ day of ___ 1824, Stuart assigned the mortgage to Nancy D. McDowell, and on the 1st of October, 1825, Nancy D. McDowell obtained a judgment in the Circuit Court of St. Louis county, foreclosing the mortgage; but the plaintiff was not a party to the judgment and proceedings of foreclosure. On the 13th of January, 1827, the Circuit Court ordered the sale of the mortgaged premises, to pay the sum for which the judgment of foreclosure was obtained; and on the 30th of April, 1827, the sheriff of St. Louis county, under a special writ of fieri facias, issued on the judgment of foreclosure, sold and conveyed the mortgaged premises to Ann D. McDowell. On the 30th of May, 1829, Thomas F. Riddick and the plaintiff executed a deed of conveyance of what purports to be the lot, to Alexander Stuart, but the certificate of acknowledgment does not state that the contents were made known to the plaintiff, and it is contended by the plaintiff that this deed is only intended to convey a lot on the west of the one in controversy, and does not include it, but the defendant insists that it does include it. On the 27th of April, 1850, the plaintiff, in order to correct all mistakes and clear up all doubts, conveyed to the defendant all of her interest in that part of the mortgaged premises that is on Fifth street, which does not include the lot in controversy. On the 8th of January, 1850, the plaintiff filed her petition in the Circuit Court of St. Louis county, stating that she is entitled to one undivided half of the lot in fee simple, and to dower in the other half, by virtue of the Spanish laws, and the statute laws in force at the time of the purchase of the lot in 1814, and in her petition she asks, that such dower and other interest in the lot as the law allows to her, be assigned and set off to her, according to law, and she also asks for such other and further relief in the premises as she may be lawfully entitled to.

The defendant in his answer denies that the plaintiff became entitled to an undivided half of the lot in fee simple, as claimed by the plaintiff; and avers that he acquired all of the right, title and interest of the plaintiff and her husband by virtue of the foreclosure of the mortgage, and the sale of the mortgaged premises by the sheriff; that he holds the lot by intermediate conveyances from Alexander Stuart, who acquired the same as before stated. The defendant insists in his answer that the conveyance before mentioned, from Thomas F. Riddick and the plaintiff, to Alexander Stuart in 1829, is sufficiently executed and acknowledged, to convey the interest from the plaintiff and her husband to Stuart; that at the time of the death of Thomas F. Riddick, a large amount of just debts which have not since been paid, were due and owing by him to divers persons; and the defendant denies that the plaintiff is entitled to dower in the premises. A witness on the part of the plaintiff states, that he knows the premises in controversy, that the brick house on the lot is worth about $300 per annum rent; that the ground without the improvements is worth from $4 to $6 per annum per front foot on a lease for ten years.

The defendant read in evidence a transcript from the record and proceedings of the County Court of Jefferson county, in order to show that there are debts allowed against the estate of Thomas F. Riddick, which are yet unpaid, and the plaintiff objected to the reading of the transcript which was read, subject to the objection, to which the plaintiff excepted.

A witness offered by the plaintiff in rebuttal states, that letters de bonis non have been taken out on the estate of Thomas F. Riddick; that there is a tract of land in Jefferson county of several hundred acres, claimed by the representatives of Riddick; also another of two by forty arpents, in the Prairie des Noyes, near St. Louis; that these lands are of sufficient value to pay the debts of the intestate. On being cross-examined, he stated, that in speaking of debts, he means those already proven up against the Riddick estate; and he does not know what other debts there may be, if any, and he only knows from hearsay, that letters de bonis non have been granted on Riddick's estate; that the interest of Riddick's representatives in the land referred to, will, of course, depend upon their title, and does not know of his own knowledge what that title is; that the lands themselves are of sufficient value to pay all the debts he knows of.

The plaintiff then asked for the following instructions: 1. If the court, sitting as a jury, find that the plaintiff and Thomas F. Riddick were married on the 12th day of August, 1812, and that said marriage continued until the 14th of January, 1830, when said Riddick died, and that on the 8th day of October, 1814, the premises in question were conveyed by deed of bargain and sale to Thomas F. Riddick, the plaintiff became, by virtue of such deed, vested with one-half of the beneficial interest in said premises, and the introduction of the common law did not divest any right thus acquired, and unless the plaintiff is barred by the proceedings on the foreclosure given in evidence, she is entitled to redeem one-half of the premises in controversy and paying one-half of any balance that may be due after the rents and profits shall be applied to the discharge of the debt, and that a decree or order for an account should be made upon the principles stated. 2. If the plaintiff is not entitled to the relief asked for in the first instruction, she is entitled to dower, subject to the mortgage, and that she is entitled to dower in the equity of redemption, and if any part of the mortgage money after applying the rents and profits, remain due and unpaid, in case the mortgagee declines to receive his debt, she must keep down one-third of the interest of such balance, and if payment of the principal is required the plaintiff must contribute her proportion, which will be settled and determined after the taking of such account. 3. The proceedings to foreclose the mortgage in question, do not bar the plaintiff and give no other or greater right to the purchaser at the sale, under the foreclosure, than would have been acquired by the husband's conveyance of the same premises. 4. If the court, sitting as a jury, find that the plaintiff and Thomas F. Riddick were married on the 12th day of August, 1812, and that said marriage continued until the 14th day of January, 1830, when said Thomas F. died, and that on the 8th day of October, 1814, the premises in question were conveyed by deed of bargain and sale to said Thomas F., the plaintiff became, by virtue of such deed, vested with one-half of the beneficial interest in said premises, and the introduction of the common law did not divest any right thus acquired. 5. If the plaintiff is entitled to one-half of the beneficial interest in said lot, she is also entitled to dower in the other half thereof. 6. If the plaintiff is not entitled to one-half of the beneficial interest in said lot, she is entitled to dower in the whole of the same.

The court refused to give the 1st, 4th, 5th and 6th instructions, but gave the second and third, and decided the law to be as cited in the said last two instructions; and the plaintiff excepted to the opinion of the court in refusing to give said 1st, 4th, 5th and 6th instructions.

The defendant asked for the following instructions: 1. The defendant moves the court to decide, as a matter of law, that the plaintiff is not entitled to recover any part of the lot described, as derived of Felicite Marle, upon the ground that a community existed between the plaintiff and her deceased husband, Thomas F. Riddick. 2. The defendant further moves the court to decide as a matter of law, that the plaintiff is not entitled to dower in the lot described, as derived from Felicite Marle.

The court gave the first instruction asked for by the defendant, and refused to give the second, and the defendant excepted to the opinion of the court in refusing to give the second instruction asked for by him.

On the 8th of May, 1851, the court below decided that the plaintiff was entitled to dower in the premises, but that she is not entitled to any part of the lot, on the ground that a community existed between the plaintiff and her deceased husband, and that she is not entitled to any interest in the lot, except of dower above specified, but that the dower is subject to the mortgage, and the proceedings were referred to a commissioner in the usual way, to ascertain whether the mortgage had been satisfied or not. The commissioner reported that the mortgage was satisfied, which report was confirmed by the court. After the confirmation of the report, the court below rendered judgment that the plaintiff be seized and endowed during her natural life, of one-third in value of the lot and improvements thereon, and three commissioners were appointed by the court to assign and admeasure the dower to the plaintiff and report to the next term. Each party made motions for a new trial, which were overruled and excepted to, and both parties appealed to this court.

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77 cases
  • State v. Roach
    • United States
    • Missouri Supreme Court
    • June 2, 1914
    ...a rule of statutory construction in this state that effect shall, if possible, be given to the whole and every part of a statute. Riddick v. Walsh, 15 Mo. 519; Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St. Rep. 649; Scott v. Royston, 223 Mo. 568, 123 S. W. 454; State ex rel. v. Ryan,......
  • Strottman v. St. Louis, I. M. & S. Ry. Co.
    • United States
    • Missouri Supreme Court
    • February 27, 1908
    ...is for ignoring section 1, and they must be construed together and effect given to all the provisions of the act if possible. Riddick v. Walsh, 15 Mo. 519. This is a cardinal rule in the construction of statutes. Thus, in Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St. Rep. 649, it is ......
  • Verdin v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • November 26, 1895
    ...true intent of the framers of the law. Whitney v. Whitney, 14 Mass. 92; State v. Emerson, 39 Mo. 80; State v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519. In such cases, the reason of the law prevails over its letter, and general terms are so limited in their application as not to lead t......
  • Verdin v. The City of St. Louis
    • United States
    • Missouri Supreme Court
    • November 19, 1895
    ...the framers of the law. Whitney v. Whitney, 14 Mass. 88; State ex rel. v. Emerson, 39 Mo. 80; State ex rel. v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519. In such cases, reason of the law prevails over its letter, and general terms are so limited in their application as not to lead to i......
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