Scanland v. Walters
| Decision Date | 08 October 1924 |
| Docket Number | No. 23527.,23527. |
| Parties | SCANLAND et al. v. WALTERS et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Rails County; John L. Plowman, Special Judge.
Proceeding for assignment of dower by Anna Estelle Scanland and another against Harriett Walters and others, in which named defendant and defendant Etta Walters each interposed a cross-bill. From the judgment rendered such defendants appeal. Pending appeal defendant Harriett Walters died testate, and her executor and beneficiary under will entered their voluntary appearance. Appeal dismissed.
B. B. Megown and Stout & Watson, all of New London, and Hostetter & Haley, of Bowling Green, for appellants.
J. O. Allison, of New London, for respondents.
This is a proceeding under section 347, R. S. 1919, for the assignment of dower. It was instituted in the circuit court of Rails county by Anna Estelle Scanland, widow of Charles B. Scanland, deceased, and Reuben F. Roy. Harriett Walters and the collateral heirs of Charles R. Scanland were made parties defendant. The petition alleged, in substance, that in 1901 one J. Edward Walters was the owner of a certain tract of land (described by metes and bounds) in Rails county, Mo., subject to the dower and homestead interest therein of his mother, the defendant Harriett Walters; that thereafter the said J. Edward Walters died intestate, and in the course of the administration of his estate, and under and by virtue of an order of the probate court of Rails county wherein said administration was pending, all the right, title, and interest of said J. Edward Walters in and to said land was sold and conveyed by his administrator to the said Charles B. Scanland and the plaintiff Reuben F. Roy, who thereupon became the owners of said land as tenants in common, subject to the said homestead and dower interest of Harriett Walters; and that thereafter said Charles B. Scanland died intestate, and, upon the election of his widow, she became invested with an undivided one-half of the interest in the land of which her husband died seized; the remaining one-half descending to his collateral heirs. It further alleged that the dower and homestead interest of the defendant Harriett Walters in said land had not been admeasured, assigned, or set off to her. The prayer was for such an assignment.
Defendant Harriett Walters filed a separate answer. In this she denied that either the plaintiffs or her codefendants had any interest whatever in the land described in the petition. She averred that she had the full equitable title thereto because the land was paid for with her money upon its original purchase by her husband, George Walters, the father of said J. Edward. She further averred that the administrator's deed upon which plaintiffs based their claim of title was void because of certain alleged jurisdictional defects in the proceeding in the probate court which led up to and culminated in the execution of the deed, and because of certain alleged fraudulent acts and conduct on the part of the administrator in connection therewith. All of these matters were set forth in detail. The pleading concluded as follows:
J. Edward Walters left surviving him a widow, Etta Walters, but no descendants. On her application she was made a party defendant and filed a separate answer. In this she denied that the plaintiffs had any interest in the land in controversy. She averred on the contrary that the administrator's deed under which they claimed was void and upon the same grounds as those set forth in the separate answer of the defendant Harriett Walters. She further asserted ownership of an undivided one-half of the interest which her husband owned in the land at the time of his death, and charged that the administrator's deed was a cloud upon her title. She asked for affirmative relief as follows:
"Wherefore this defendant prays the court C * to cancel and hold for naught such administrator's deed, and to grant this defendant such other and further relief as the evidence may show she is entitled to, and to adjudicate and confirm to her her undivided one-half interest in said real estate subject to such interest as Harriett Walters had therein as the widow of George W. Walters, deceased, and she further prays for general relief."
The affirmative matters pleaded in the answers were put in issue by replies.
After hearing the evidence, the court made its findings and rendered judgment. The findings seem to have been stated in writing. They were set out in extenso, and consisted of conclusions of both law and fact, with the reasoning employed by the court in arriving at them. In the concluding part of the statement they were summarized in this language: "The court therefore finds the issues for plaintiffs and against the defendants." Immediately following this was the judgment:
From such judgment defendants Harriett Walters and Etta Walters were granted an appeal.
After the appeal was lodged in this court, defendant Harriett Walters died testate. Thereafter her executor and the one beneficiary under her will entered their voluntary appearance here, as did also Etta Walters as grantee in a deed conveying to her all of the interest in the land claimed by the said Harriett Walters, and the cause was revived in their names.
At the threshold of the case we are confronted with the question of whether the judgment rendered by the trial court is one from which an appeal lies. The opinion of the court embodying its findings of fact and conclusions of law has not been set out at length because it constitutes no part of the judgment. 33 C. J. 1052. The judgment is simply that Harriett Walters is entitled to dower. It is manifest that such judgment does not dispose of all the issues raised by the pleadings. The principal issue was tendered by the answers of the defendants Harriett Walters and Etta Walters, and that was whether the administrator's deed to Scanland and Roy was void. With respect to this the judgment is silent. Nor does it impliedly dispose of that issue. It is entirely consistent with the contention of Etta Walters that Harriett Walters, as the widow of George Walters, had a dower and homestead interest in the land in question, and that upon the death of J. Edward Walters, the sole heir of George, a one-half interest in the land, subject to such dower and homestead, accrued to her as the widow of J. Edward, and the remaining half descended to Harriett as his heir. Stated another way, the judgment does not dispose of the issues tendered by the cross-bills. Nor does it dispose of all the parties to the record. The claim of the defendant Etta Walters is entirely ignored. The trial court no doubt intended to enter final judgment disposing of all the issues upon the coming in of the report of the commissioners appointed to admeasure the dower. As the judgment actually rendered was purely interlocutory in character, an appeal did not lie from it. Strickler v. Tracy, 66 Mo. 465.
Upon the death of Harriett Walters her homestead and dower, if such were her interests in the land, terminated. She was in possession up to the time of her death; consequently there were no damages to be assessed. In other words, the action, in so far as it had for its purpose the assignment of dower, abated upon her death. Notwithstanding, the cause of action pleaded in the cross-bill persists. But there is no judgment with respect to it to be either affirmed or reversed. The appeal was prematurely taken, and must therefore be dismissed. It is so ordered.
The following opinion filed by me in division is now refiled as a dissent to the present opinion of the majority:
Statement.
The plaintiffs instituted these proceedings in the probate court of Rails county against the defendants for the assignment of dower. The plaintiffs are Anna Estelle Scanland (widow of Charles Boone Scanland) and Reuben F. Roy, now deceased.
This is an action for the assignment of dower in a tract of 100 acres of land situated in Rails county, Mo. The plaintiff's sole claim to title to the 100-acre farm in controversy is based on an administrator's deed dated May 27, 1910, made by Jesse B. Jones as administrator de bonis non of the estate of J. Edward Walters, deceased. .
The two widows, ...
To continue reading
Request your trial