Seek v. Haynes

• Decision Date: 31 October 1878
• Citation: 68 Mo. 13
• Parties: SEEK, Appellant, v. HAYNES.
• Court: Missouri Supreme Court

68 Mo. 13

SEEK, Appellant,

v.HAYNES.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Ray Circuit Court.--HON. GEO. W. DUNN, Judge.

Farris & Conrow for appellant, cited Gragg v. Gragg, 65 Mo. 343; Doane v. Doane, 33 Vt. 650.

C. T. Garner & Son for respondent.

It is insisted that the proceedings in the probate court by the appellant for the sale of the land, instituted by her, was an adjudication in law, and the final order so made as aforesaid was in the nature and had the force and effect of a judgment. It was in a court having competent jurisdiction with all the parties interested and all the facts and subject matter before it. It was final--predicated upon the law and the facts, possessing all the features of a judgment or decree--passes title to the purchaser, and is legally conclusive and binding upon the appellant, the creditors and heirs of the estate, and now precludes the appellant from asserting her homestead right. It is insisted that when the appellant brought her suit for dower, it was her duty, and she was bound to assert all the claim she might have in the land, and failing to make any claim for homestead, and afterwards by legal proceedings in a court of competent jurisdiction, having said land adjudged and ordered to be sold, constitutes in law a waiver of any homestead rights in the land, was a relinquishment of such right, and precludes her from now claiming a homestead right. In the case of Gragg v. Gragg the assertion of the homestead right was only against the children and heirs. In the case at bar, creditors intervene who are interested. In the Gragg case the widow bore no special relation to the estate, and there were none of the elements of legal waiver or estoppel. In the case at bar the appellant, who is the widow, sustained such a relation to the estate as made all the proceedings binding upon her, and admissions of record against her--the elements of waiver and estoppel exist in the case at bar. In the Gragg case the widow had done nothing to mislead or deceive the heirs, nor did her claim abridge their rights. In the case at bar the appellant has deceived and misled the creditors, imposing upon the estate the expense of assigning dower, and afterwards having the residue of the land ordered and adjudged to be sold for the benefit of creditors to pay their debts, and then afterwards setting up a claim of homestead to defeat the very proceedings instituted, and deprive the creditors of the estate.

SHERWOOD, C. J.

Plaintiff instituted this proceeding in the Ray probate court to have a homestead set out to her and her two minor children. On the cause being appealed by her to the circuit court, it was submitted upon the following agreed statement: First, That John K Seek departed this life, intestate, on the 18th day of May, 1873, seized and possessed of an indefeasible estate, in fee simple, in and to about 195 acres of land in Ray county, State of Missouri, leaving Mary Seek, appellant herein, as his widow, and also two minor children, and at the time of the death of the said Seek, and for a long time prior thereto, he and Mary Seek, his wife, resided upon the land aforesaid. Second, That during the lifetime of the said John K. Seek, he owed no debts that constituted a legal charge upon his lands. Third, That the title to the lands of which the said Seek died seized and possessed, has in no particular been changed since his demise. Fourth, That if Mary Seek and her two minor children are deemed entitled to homestead in the land of which John K. Seek died seized and possessed, it is necessary that the same should be set off by metes and bounds. Fifth, That upon the death of the said John K. Seek, Mary Seek, his widow, administered upon the estate of her deceased husband; that, as administratrix, she applied to the probate court for an order to sell all or so much of deceased's land as would be sufficient to pay his debts, and that the order was so made, but no sale was ever had under said order, that the...