Thomas v. Mallinckrodt

• Decision Date: 31 October 1868
• Citation: 43 Mo. 58
• Parties: MARGARET THOMAS, Respondent, v. EMIL MALLINCKRODT, Appellant.
• Court: Missouri Supreme Court

43 Mo. 58

MARGARET THOMAS, Respondent,

v.EMIL MALLINCKRODT, Appellant.

Supreme Court of Missouri.

October Term, 1868.

Appeal from St. Louis Circuit Court.

Margaret Thomas, the plaintiff, sued the defendant, at the October term, 1858, of the St. Louis Land Court, to recover her dower in certain lands in north St. Louis, described in the petition, and being part of a larger tract of 123 26/100 arpents, formerly owned by Martin Thomas, her husband. Martin Thomas died September 13, 1848. The plaintiff's petition for dower was filed September 13, 1858, against this defendant. Many other persons in possession of other parts of the same tract were sued at the same term, the plaintiff averring that she had never relinquished her dower in any part of the same. The general questions as to her right to recover her dower were passed upon by this court in the case of Thomas v. Meier, 18 Mo. 573, and Thomas v. Hesse, 34 Mo. 13; the other cases referred to, including the case at bar, being continued from term to term to await those decisions. On the 28th of January, 1865, this cause came up for trial and was submitted to the court, which found that the plaintiff was entitled to a dower interest of one-third part, for her natural life, in the specific lands in the dower mentioned; and it was ordered by the decree that Haven, Maguire, and Edgar, as commissioners, should admeasure and assign her dower. On the 22d of June, 1865, these commissioners filed their report, whereby was set off and assigned to the plaintiff, in full of her dower in the lands in the decree mentioned, a lot of ground in block 1208 of the city of St. Louis, bounded west by Main street, north by Mallinckrodt street, east by Kennett street, and south by other lands in said block, having a front of 241 feet 9 inches on the east side of Main street, by a depth of 1300 feet westwardly to Kennett street, and a front of 217 feet on Kennett street, by a depth on Mallinckrodt street of 300 feet. No steps in the cause were taken by either party, after the filing of this report, till the October term, 1867, when, on the 17th of October, 1867, the court, on motion of plaintiff, approved the foregoing report. On the 6th of February, 1868, a jury was impaneled to assess the damages in favor of the plaintiff for the detention of the dower so set apart to her.

Lewis Bissell testified, in substance, for plaintiff, that he owned property in north St. Louis, lying from a third to a half mile north of the land in question, and that for this reason he supposed his land to be less valuable; that he had, from time to time, leased part of his property in lots during the last twelve or fourteen years; that he had laid out several additions on his property, and had leased unsold lots as occasion offered, but did not think he had leased as many as a hundred lots in all; that the highest lease was one dollar, and sometimes fifty cents, per foot; some of his leases were for building purposes, for a term of five years; that he did not know what the tract, for dower in which plaintiff sued, would have leased for during the period in question; during that time his own property brought in very little income, there being no call for it; he had not been able to lease an average of more than one-sixth of his lots; could not say whether the rents received from the lots he did lease paid the taxes on said lots; thought it doubtful. Defendant's counsel then proposed to said witness the following questions, which were severally objected to by plaintiff's counsel, and the objection sustained:

1. Did the annual amount received from rents on the leased lots more than pay the taxes upon the whole number leased and unleased embracing the period from 1858 to 1865?

2. When you leased one-sixth of the lots in a block, did the annual rents received therefrom more than pay the annual taxes upon the whole block during the period from 1858 to 1865?

3. Had the plaintiff been in possession of the property or lots in question from 1858 to 1865, could she, by any reasonable effort, have rented the same, upon leases to terminate with her life, for more than the annual taxes upon the same?

H. W. Leffingwell testified as to the fair yearly rental value of the several lots held by the defendant, exclusive of taxes and improvements, from September, 1858, to June, 1865, summing up the entire yearly value thereof at $1,366.70; but stated that he had no personal knowledge of what this property could have been leased for; that his opinion as to the rental value was made up exclusively by affixing a fair valuation--a low valuation, he thought--upon the land in fee simple, and then taking six per cent. per annum on such valuation as the fair yearly rental; knew nothing himself about the property in question; the valuation he set upon the property was not at a cash price, but what it would sell for in fee at say one-fifth or one-fourth cash, and the balance in one, two, and three years.

Edward Haven testified that, in his opinion, the fair yearly rental value of the entire tract of which defendant was in possession (as described in the decree), exclusive of taxes and improvements, during the period in question, would have been about $991.55 per annum, but stated that his estimate was made up exclusively by setting a cash value on the land in fee simple, and then assuming that whenever any man wanted to lease land in this city he would pay six per cent. per annum on the cost value thereof as yearly rent for it; but he could not say what the property in question would have leased for from 1858 to 1865.

The testimony on behalf of defendant tended to show that very little of the land held by him could have been leased for more than the taxes assessed on it; that the eastern portion of the tract was liable to overflow, and was overflowed in high water; that from 1860 to 1865 there was little or no demand for any such lands, or opportunity of leasing it.

Plaintiff asked the following instruction, which was given:

The jury are instructed that said plaintiff is entitled to recover in this cause damages for the detention of her dower from the 13th day of September, 1858, down to the 22d day of June, 1865; and in assessing the same the jury will consider how much has been or would have been the yearly value of said land in the petition mentioned, apart from improvements, and deducting the annual taxes, when so used by the owner thereof as to make the same productive; and in estimating the damages the plaintiff is entitled to recover one-third of what the jury shall so find.”

Plaintiff asked the following instruction, which was refused:

“The jury are instructed that said plaintiff is entitled to recover in this cause damages for the detention of her dower from the 13th day of September, 1858, down to the 17th day of October, 1867; and in assessing the same the jury will consider how much has been or would have been the yearly value of said land in the petition mentioned, apart from improvements, and deducting the annual taxes, when so used by the owner thereof as to make the same productive; and in estimating the damages the plaintiff is entitled to recover one-third of what the jury shall so find.”

Defendant asked the following instruction, which was given:

“The defendant asks the court to instruct the jury that, in estimating the value of the plaintiff's dower from September 11, 1858, to June 23, 1865, the jury are not authorized to fix a value on the land in fee simple, and then to allow or compute the yearly value of the land at any given rate of interest on such supposed value. It is the duty of the jury to find from the evidence before them what was the reasonable net yearly value of said land, without reference to any improvements, and after deducting the taxes, if the same had been reasonably used by the owner; and it is for the plaintiff to prove the amount of the damages she has sustained.”

Defendant asked the following instructions, which were refused:

1. “That the jury are to allow the plaintiff in this case, as damages on the land subject to dower, the one-third of the net annual value from June 11, 1858, to September 23, 1865, deducting taxes and assessments if any, and not taking into account the improvements.”

2. “That, in assessing...