Sweaney v. Mallory

• Citation: 62 Mo. 485
• Parties: ELIZABETH L. SWEANEY, et al., Respondents, v. GRANVILLE H. MALLORY, et al., Appellants.
• Decision Date: 31 May 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 485

ELIZABETH L. SWEANEY, et al., Respondents,

v.GRANVILLE H. MALLORY, et al., Appellants.

Supreme Court of Missouri.

May Term, 1876.

Error to Clinton Circuit Court.

John Conover, for Plaintiff in Error.

I. If a dowress is guilty of fraudulent practices in inducing the purchaser to take the estate under a belief that she waives her dower, she will be estopped from afterward claiming dower. (2 Scrib. Dow., 257; Deshler vs. Beery, 4 Dal. [[[[[Pa.], 300; Dougrey vs. Topping, 4 Paige, 94; Lawrence vs. Brown, 1 Seld., 394; Wood vs. Seely, 32 N. Y., 105; Smiley vs. Wright, 2 Ohio, 506; Ellis vs. Didon, 1 Cart [Ind.], 561; S. C., 1 Smith [Ind.], 354; Storrey vs. Bank of Charleston, 1 Rich. Eq. [S. C.], 275; Sto. Eq. [11 ed.], §§ 385, 385 a, 1546; 4 Kent Com. [9 ed.], t. p. 287, n. b.; 3 Thos. Coke, t. p. 342; Fonbl. Eq., 163; Wendall vs. Van Ransellaer, 1 John. Ch., 353; Skinner vs. Stouse, 4 Mo., 93; Taylor vs. Zepp, 14 Mo., 482; Lindell vs. McLaughlin, 30 Mo., 28; Newman vs. Hook, 37 Mo., 207; Rice vs. Bunce, 49 Mo., 231; Choutean vs. Goddin, 39 Mo., 229-250; Huntsucker vs. Clark, 12 Mo., 333, 339; Norton vs. Kearney, 10 Wis., 397; Darrell vs. Odell, 3 Hill., 319; Chynowith vs. Tenney, 10 Wis., 397; Racine Co. Bk. vs. Lathrop, 12 Wis., 466.)

James L. Davis, for Defendant in Error.

I. The widow's admissions were made under a misapprehension of her legal rights, and therefore do not affect her. (14 Mo., 482; 24 Mo., 254.)

II. The doctrine of subrogation is inapplicable to this case. (Jones vs. Bragg, 33 Mo., 339.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit brought by plaintiff, formerly widow of George Mallory, deceased, for the assignment of dower in the real estate of which her late husband died seized and possessed.

The defendants in their answer alleged, that in his life time George Mallory mortgaged the land (in which mortgage plaintiff Elizabeth joined, relinquishing her right of dower), to secure the payment of a debt of one thousand dollars, and died leaving the debt unpaid; that the holder of the debt and mortgage obtained a judgment therein in the circuit court against George Mallory's administrator for the sum of about thirteen hundred dollars, and foreclosing the equity of redemption to the said lands. Afterwards, the administrator obtained an order from the probate court for the sale of the real estate, and in pursuance of that order he exposed the same for sale to the highest bidder; that the administrator caused the absolute title to be sold, including the dower of the plaintiff, who was present at the sale and assented to the same, and admitted that the sale was absolute and free from her claim of dower, and that the purchaser would acquire an absolute title, free from any claim of dower on her part; that one of the defendants, Ray, relying on the assent and admissions of the plaintiff, was induced to purchase the said real estate in good faith and for full value at the price of one thousand seven hundred and eighty two dollars and fifty cents, and that he received a deed from the administrator for the same; that out of the purchase money the amount due on the mortgage and judgment was paid, and that defendant went into possession of the lands, and made valuable and lasting improvements on them, for which reasons the plaintiff should be estopped from claiming dower in the premises. The answer further claimed that defendant was entitled to be subrogated to all the rights of the mortgagee.

All the above recited and foregoing parts of the answer were stricken out as constituting no defense, and defendant excepted. The court then proceeded, and had dower assigned.

In the case of Jones vs. Bragg (33 Mo., 337), it was held that the doctrine of subrogation was not applicable to a case like this.

The only question then presented for our determination is, whether the matters alleged in the answer constituted an estoppel.

In his treatise on Dower, Mr. Scribner says: “It is a point upon which the authorities are generally agreed, that if the dowress is guilty of fraudulent practices in inducing the purchaser to take the estate under a belief that she waives her right to dower, she will be estopped from afterwards setting up her claim.” (2 Scrib. Dow., 251.) Numerous cases are referred to by the author, which support the doctrine laid down in his text. In Dougrey vs. Topping (4 Paige, 94), where real estate of a decedent was sold by an administrator and administratrix under a surrogate's order, in which estate the administratrix was entitled to dower, and in the terms of sale it was stated that a clear and satisfactory title would be given, and the purchaser paid the full value of the premises under a belief that he was obtaining a perfect title, it was held, that the silence of the administratrix as to her claim of dower was such a fraud upon the purchaser as to preclude her from afterwards setting up such claim against him, or his assigns. In determining the case the chancellor remarked as follows: “As the administratrix joined in the report of the sale to the surrogate, she must have been present at the sale, either personally, or by her agent; and must have seen the written terms of the sale, in which it was stated that the purchaser was to have a clear and satisfactory title. It was the brewery and lot on which it stood, and not merely the decedent's interest therein, for which a clear and satisfactory title was to be given to the purchaser, and that necessarily excluded the idea that the purchaser was to take the property incumbered with...