Roberts v. Nelson

• Decision Date: 30 April 1885
• Citation: 86 Mo. 21
• Parties: ROBERTS, Administrator, v. NELSON, Appellant.
• Court: Missouri Supreme Court

86 Mo. 21

ROBERTS, Administrator,

v.NELSON, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

O. H. Travers and F. S. Heffernan for appellant.

(1) If this action is under the dower law the circuit court of Greene county had no jurisdiction of the case. See section 4, page 58, local laws of the state of Missouri, 1855, published in 1865, giving the probate court of Greene county the exclusive original jurisdiction in probate of wills and assignment of deeds. (2) This being an action of ejectment the cause could not be revived in name of administrator of Aletha J. Roberts. (3) The judgment, if at all, should be for only one-third of the amount proved and special against the land, and should not include rental value of the improvements. R. S., sec. 2228; Griffin v. Regan, 79 Mo. 73; McClanahan v. Porter, 10 Mo. 746; Reilly v. Botes, 40 Mo. 469; O'Flaherty v. Suttor, 49 Mo. 583. This was plainly an action in ejectment. It matters not what circumstances gave the plaintiff the right of recovery, that right was not affected by her death. It survived to her heirs, and when a plaintiff dies, the suit, in an action of this kind, must be revived in the name of the heirs. Fine et al. v. Gray, 19 Mo. 33. The executor or administrator cannot maintain the action. Burdyve v. Mackey, 7 Mo. 374. Section 2253, of the Revised Statutes, does not apply to this case, for the reason that that section does not contemplate a change of the parties to the action, but only the extinguishment of the right of action. There was no testimony to show the death cf William G. Roberts. The deposition was not admissible. His death could only be established by some person who knew him, and saw his body when dead. 1 Greenleaf (13 Ed.) secs. 103 and 104; Phillips on Evidence (4 Am. Ed.) 233; 2 Greenleaf (13 Ed.) secs. 278 g, and 278 h; Abbott's Trial Evidence, p. 90, and notes thereto.

W. C. Price and C. W. Thrasher for respondent.

(1) The coroner's deed to Farmer and Caynor was absolutely void and conveyed no title to the grantees named therein. The notice required to be given by section 29, page 1425, Revised Statutes, 1855, was never given to defendant; he never appeared to the proceeding, and the judgments are void for want of jurisdiction of the defendant. This was a summary proceeding, under a special statute, by a court of limited jurisdiction, and to be valid the record must show substantial compliance with the provisions of the statute. State v. Metzger, 26 Mo. 65; Walker v. Turner, 9 Wheat. 549; Galpin v. Page, 18 Wall. 350; Mills v. Martin, 19 Johns. 34; Shufeldt v. Buckley, 45 Ill. 223; Sears v. Terry, 26 Conn. 273; Freeman on Judgments (3 Ed.) sec. 123. (2) The sale recited in said deed was an execution sale by the coroner of the county, made during the session of the county court, and not during the session of the circuit court, and is, therefore, null and void, and may be attacked collaterally or otherwise. R. S., 1855, p. 746, sec. 45; McClurg v. Dollarhide, 51 Mo. 347; Bank v. Evans, 51 Mo. 335; Bruce v. Leary, 55 Mo. 431. (3) Said coroner's deed is void for the further reason that it was not acknowledged before the circuit court, as required by statute. R. S., 1855, p. 748, sec. 57; Ryan v. Carr, 46 Mo. 483; Adams v. Buchanan, 49 Mo. 64; Freeman on Executions, sec. 331. (4) Aletha J. Roberts, as the widow of William G. Roberts, deceased, was entitled to possession of the mansion house and the messuages or plantation thereto belonging, of her deceased husband until her dower was assigned and could maintain ejectment therefor. R. S., 1855, p. 672, sec. 21; Stokes v. McAllister, 2 Mo. 163; Jones v. Manly, 58 Mo. 559; Miller v. Tally, 48 Mo. 503; Brown v. Moore, 74 Mo. 633. (5) The administrator was the proper party to prosecute the suit for damages and costs under the statute. R. S., 1879, sec. 2253; Tyler on Eject. 839, 840; Clark v. Railroad, 36 Mo. 202; Brewington v. Stephens, 31 Mo. 38; Carlisle v. Rawlings, 18 Mo. 166. (6) If plaintiff prevailed in the action he was entitled to recover, by way of damages, the rents and profits down to the time of the expiration of plaintiff's title.

BLACK, J.

1. This was an action of ejectment. On the trial the death of W. G. Roberts, the common source of title, was admitted. It was also conceded that Aletha was his widow and that no dower had ever been assigned to her. The proof is conclusive that she continued to reside on the home place of the deceased and that the lands in question constituted a part thereof. She had the right to remain in and enjoy the mansion house, messuages and plantation thereto belonging, until dower was assigned to her. R. S., 1855, p. 672, sec. 21. This right can only be terminated by the assignment of dower. Ejectment will lie to enforce her right of possession to such lands and this suit was, therefore, properly brought by her. Brown v. Moore, 74 Mo. 633; Miller v. Talley, 48 Mo. 503; Jones v. Manly, 58 Mo. 559; Stokes v. McAllister, 2 Mo. 163. And she is entitled to the whole of the rents where there is no outstanding lease at the date of the death of her husband. Orrick v. Robbins, 34 Mo. 226.

2. The further question arises whether the suit could be revived in the name of the administrator of the widow, she having died pending the suit. The administrator was allowed to recover rents by way of damages down to the death of the widow, but not possession of the lands. This, it is contended, was error. Of course, the lands descended to the heirs, or if the defendant had the title he became entitled to the possession. But the administrator was the proper party to recover the rents and profits, They were assets of the estate. Our statute with respect to ejectment suits contemplates that damages may be declared for in the same suit and in the same count. It expressly provides that, if the plaintiff prevail, he shall recover, by way of damages, the rents and profits down the time of assessing the same, or to the time of the expiration of the plaintiff's title, and that, if the plaintiff's right to the posession expires after the commencement of the suit and before trial, recovery may be had for the damages. In some states the damages for the detention of the property must be sued for in a separate action, or in a separate count in the same suit. The cause of action for the damages does not abate, and the administrator is the proper party to sue therefor. There is no reason why the estate should be driven out of court and the administrator compelled to institute a new suit for the...