Rogers v. Mayes

• Decision Date: 31 October 1884
• Citation: 84 Mo. 520
• Parties: ROGERS, by Guardian, v. MAYES et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

84 Mo. 520

ROGERS, by Guardian,

v.MAYES et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1884.

Error to Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

S. P. Sparks for plaintiff in error.

(1) The declaration of law given by the court at the instance of plaintiff was erroneous for the reason: It allowed the plaintiff to recover the possession for all time to come, notwithstanding he was only entitled at most during his minority, and the judgment should have been so limited. Canole v. Hurt, 78 Mo. 649; 1 Wag. Stat., § 5, p. 698. (2) It was the duty of the probate court under the law, supra, to set out such homestead to the parties entitled thereto, and according to the agreed statement the probate court set out the homestead to the widow, Sarah J. Payne. This, at least, is prima facie evidence that Thomas L. Rogers, the plaintiff, was not entitled to any homestead interest. 1 Wag. Stat., § 5, p. 698. (3) The instruction asked by defendants that plaintiff was not entitled to recover only an undivided half of the premises in controversy during minority, was based upon the theory that they were tenants in common under the statute abolishing joint tenancy, in force at the time of the enactment of the homestead act. R. S., 1865, chap. 108, § 12; 2 W. S., § 12, p. 1352. Since the trial and appeal of this cause to this court, the above question has been passed upon in Canole v. Hurt, supra. In that case no allusion, however, was made to the section above referred to, which was in force at the time of the enactment of the homestead law and is as follows: “Every interest in real estate granted or devised to two or more persons other than executors or trustees, or to husband and wife, shall be a tenancy in common, unless expressly declared in said grant or devise to be in joint tenancy.” The section vesting the title of the homestead in the widow and minor children, is silent as to whether they take as tenants in common or jointly, and as they take by operation of law, they would come in that class who take by “ grant,” and that the legislature meant that the estate should be governed by the general law respecting estates in real property seems beyond dispute.

J. J. Cockrell for defendant in error.

The form of the judgment was right. The only question in an ejectment is, who is at the time of trial or was at the commencement of the action entitled to the possession of the land in controversy? It is not the province of the court trying an action of ejectment to define the title of the parties if the successful one is entitled to the possession at the time of the trial. Tyler on Ejectment, pp. 33, 35; R. S., secs. 2247, 2253, et seq. Counsel for plaintiff in error contends that defendant in error was a tenant in common with his mother, and as such only entitled to recover possession of one-half of the homestead. His position is without foundation. The statute, section 12, chapter 108, Revised Statutes, 1865; section twelve page 1552, Wagner's Statutes, only applies to grants or devises. The title of the widow and child to the homestead vests in them by descent or by operation of law. The homestead law merely changes the rule of descent as to the homestead. The section above cited was only intended to abolish joint tenancy, which can only arise by purchase or grant and never by mere operation of law. See Cooley's Blackstone (top paging) vol. 2, book 2, pages 180, 201. As the homestead “passes to and vests in” the widow and child by operation of law, the action of the court in setting it off is only for the purpose of ascertaining its dimensions. Hence, it is wholly immaterial whether the order mentions the names of the children or not.

HENRY, C. J.

This is an action of ejectment for the recovery of a tract of land in Johnson county. There was a judgment for plaintiff, from which this appeal is prosecuted. The cause was tried on an agreed state of facts, which is as follows: James C. Rogers, father of plaintiff, died in 1873, seized of the land, his wife and plaintiff surviving him. In 1876, the real estate in controversy was duly set off to the widow as a homestead, she having previously intermarred with Fayette F. Payne, and in 1878, she and her said husband, by deed, conveyed the premises to Amanda E. Edwards, and defendants subsequently acquired this title and are in possession of the land. Plaintiff was born in September, 1871,...