Robinson v. Ware

• Decision Date: 07 May 1888
• Citation: 8 S.W. 153,94 Mo. 678
• Parties: Robinson, Appellant, v. Ware
• Court: Missouri Supreme Court

8 S.W. 153

94 Mo. 678

Robinson, Appellant, v. Ware

Supreme Court of Missouri

May 7, 1888

Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.

Affirmed.

J. McD. Trimble and George Robertson for appellant.

(1) The court erred in refusing the two instructions asked by the appellant, and in rendering judgment for the defendant; for upon the special findings as shown by the judgment of the court, the appellant is entitled to a judgment for the admeasurement of dower in the lands described in the petition, unless she is barred by the statute of limitations. Dower is not within the statute of limitations unless made so expressly. "Except where specially so provided a widow's right to dower is not barred by the statute of limitations in the several states." Wood on Lim. of Act., sec. 273, chap. 21; Bernard v. Edwards, 4 N.H 107; Bordley v. Clayton, 5 Harr. [Del.] 154; May v Rumney, 1 Mich. 1; Wakeman v. Roache, 1 Dud. [Ga.] 123; Toocke v. Hardeman, 7 Ga. 20; Ridgeway v. Macalpine, 31 Ga. 458; Owen v. Campbell, 32 Ala. 357; Littleton v. Patterson, 32 Mo. 357. In Johns v. Fenton, 88 Mo. 64, the text above quoted from Wood on Limitations of Actions, is adopted as the law of this state, and that case is decisive of the one now presented. In Dyer v. Wittler, 89 Mo. 95, the doctrine enunciated in Johns v. Fenton, supra, is commented upon and approved by the court. (2) Section 3219, Revised Statutes, does not apply to this case because the plaintiff never had the "previous seizure or possession" that is implied by that section. Littleton v. Patterson, 32 Mo. 357; Johns v. Fenton, 88 Mo. 64; Dyer v. Wittler, 89 Mo. 95. (3) Respondent relies upon section 3229, Revised Statutes, to bar plaintiff's action. But all of the sections in that article refer to "personal actions" only. R. S., sec. 3228; Bobb v. Woodward, 50 Mo. 103; Hunter v. Hunter, 50 Mo. 451; Rogers v. Brown, 61 Mo. 191; Thomas v. Mathew, 51 Mo. 107. (4) Said section 3229 of Revised Statutes, 1879, does not apply to this case, as claimed by the respondent, because an action for dower is not a "personal action," but is an action "for the recovery of real property." R. S., 1879, secs. 2208, 2211, 2212, 2214; Stephens on Pleading, 43; 1 Chitty on Pleading, 97; 4 Kent's Com. (12 Ed.) note ending on page 72; R. S., 1879, sec. 1681; 2 Black. Com. (Sharswood) 117; Stokes v. McAllister, 2 Mo. 163. (5) The courts which have decided that the action for dower is barred under the statutes of limitations of their respective states, have held that it is so barred because it is an action "for the recovery of real property." Barrier v. Conover, 1 Harr. [N. J.] 107; Torry v. Minor, S. & M. Ch. [Miss.] 489; Tuttle v. Wilson, 10 Ohio 24; Proctor v. Bigelow, 38 Mich. 282. But the respondent asks this court to decide the action barred under our statute because it is not an action "for the recovery of real property." (6) So completely is the action for dower a real action that no personal judgment can be rendered against the defendant for the damages of detention; such damages can be collected out of the real estate only. R. S., sec. 2228; Giffin v. Regan, 79 Mo. 73. (7) Every interest in land is "real property." R. S., sec. 1681. Dower is an interest in land being a life estate. 4 Kent's Com. 36. Therefore, dower is "real property." It follows then, that an action for the recovery of dower is an action for the recovery of real property. Section 3229 does not bar actions for the recovery of real property. R. S., sec. 3228. An action for the recovery of dower is an action for the recovery of real property. Therefore, section 3229 does not bar an action for the recovery of dower. Section 3219 bars those rights of action only, which arise from a disseisin. Rights of action for the recovery of dower do not arise from disseisin. Therefore, section 3219 does not bar the right of action for the recovery of dower.

Slaughter & Taylor also for appellant.

(1) The action for dower is a real action or an action to recover lands. Jones v. Patterson, 12 Pa. St. 149; Jones v. Powell, 6 Johns. Ch. 194; Ramsey v. Dozier, 2 Brev. [S. C.] 246; Rice v. Nelson, 27 Iowa 148; Parker v. Obear, 7 Met. 24; Wakeman v. Roache, Dudley's Rep. [Ga.] 123; May v. Rumey, 1 Mich. 1; Bernard v. Edwards, 4 N.H. 107; Stephens on Plead. 43, 45; Wood on Lim. 584; R. S., 1879, sec. 2208; R. S., 1825, p. 335, sec. 10. (2) Being a real action, it is settled that dower is not barred by the statute of limitations. Littleton v. Patterson, 32 Mo. 357; Johns v. Fenton, 88 Mo. 64. (3) An action for dower cannot be included under article 2 of the chapter on limitation. R. S., sec. 1329. Article 2 only applies to personal actions. Bobb v. Woodward, 50 Mo. 103; Hunter v. Hunter, 50 Mo. 445; Rogers v. Brown, 61 Mo. 187; Thomas v. Mathews, 51 Mo. 107. (4) Even if the action for dower is included in article 2, it is not limited by the third clause of section 1329. Wood on Lim. 584; Johns v. Fenton, 88 Mo. 64; Wakeman v. Roache, Dudley's Rep. [Ga.] 123; Parker v. Obear, 7 Met. 24.

T. B. Buckner for respondent.

(1) The statute of limitations of this state is divided into two articles. Article one, styled "real actions," which embraces "actions for the recovery of lands," and article two, styled "of personal actions," which embraces all "civil actions other than those for the recovery of real property." R. S., chap. 48. (2) An action for the admeasurement of dower is not an action "for the recovery of lands," but is a mere chose in action, the right to which became complete on the death of plaintiff's husband, in 1869. Waller v. Mardus, 29 Mo. 25; Littleton v. Patterson, 32 Mo. 357; Johns v. Fenton, 88 Mo. 64. (3) An action for admeasurement of dower is a civil action. "There shall be in this state but one form of action for the enforcement or protection of private rights and redress or prevention of private wrongs, which shall be denominated a civil action." R. S., sec. 3461. (4) Being a "civil action," and still not being "an action for recovery of lands," it must be a "civil action other than those for the recovery of real property," and hence be governed by article two, supra. R. S., sec. 3228. (5) Until dower be assigned, it is a mere right of action and not an estate in land. Waller v. Mardus, 29 Mo. 25; Benoist v. Murrain, 47 Mo. 557. (6) If the action for the admeasurement of dower is "a civil action other than for the recovery of real property," the right to which became complete on the death of plaintiff's husband, then the action has to commence within ten years after the cause of action accrued, or the statute of limitations will be a complete bar. Section 3229, Revised Statutes, provides what actions shall be commenced within ten years: "First, an action, etc.; second, actions, etc.; third, actions for relief not herein otherwise provided for." (7) The third subdivision, "actions for relief not herein otherwise provided for," was intended to and does include all civil actions of whatever kind or nature, whether at law or in equity, except such as had been "otherwise provided for," and hence included the action for the admeasurement of dower. Hunter v. Hunter, 50 Mo. 445-51; Rodgers v. Brown, 61 Mo. 191; Adair v. Adair, 78 Mo. 635.

Pratt, McCrary & Ferry also for respondent.

(1) The question presented has never before been before this court, because the clause of the statute of limitations here invoked (R. S., sec. 3229, subdiv. 3) was not referred to by counsel or considered by the court in any former case before this court. (2) But even if the question is not res nova, it should be reconsidered. (3) The cause of action of plaintiff is barred by the provisions of section 3229, Revised Statutes of 1879.

Black J. Ray, J., absent.

OPINION

Black, J.

This was an action for the assignment of dower, commenced in June, 1884. The plaintiff failed in the court below on the ground that her action was barred by the statute of limitations. The facts are these: Benjamin Robinson, plaintiff's husband, died in April, 1867, seized in fee of the described premises. The administrator sold the land in 1869 for the payment of the debts of the deceased, under an order of the probate court, and the defendant became the purchaser. He had had adverse possession for more than ten years before the commencement of this suit.

It becomes of some importance to determine at the outset whether this action is one for the recovery of real estate. The old writ of dower, unde nihil habet, and the writ of right of dower were classed as real actions. Angell on Lim. [6 Ed.] sec. 367; Wood on Lim., sec. 273; Stephens on Plead. [9 Am. Ed.] 10.

Our statute, in respect of the assignment of dower, provides, and for many years has provided, that "when any widow shall be entitled to dower in real estate, and she be deforced thereof, or cannot have it without suit, or if her dower be unfairly assigned, or not assigned within two years after the death of her husband, she may sue for and recover the same with damages." R. S., sec. 2206. The suit is to be brought against any person claiming an interest in the land, or being in possession, or who shall deforce her of her dower. The interlocutory judgment is that she be seized of her dower, the appointment of commissioners to set off the same, and that she recover the damages to be assessed; and by the final judgment she is awarded a writ of possession and an execution for the damages. R. S., secs. 2206-11-14-15.

Now if the old writs, which, it seems, did not give the widow possession, were properly classed as real actions, then with much greater reason should our proceeding be denominated a real action, for it not only determines the right to dower sets off the third part of the lands, but gives possession. The...