Walker's Adm'r v. Deaver

• Decision Date: 31 October 1883
• Citation: 79 Mo. 664
• Parties: WALKER'S ADMINISTRATOR v. DEAVER et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 664

WALKER'S ADMINISTRATOR

v.DEAVER et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

[COPYRIGHT MATERIAL OMITTED]

Appeal from St. Louis Court of Appeals.

JUDGMENT MODIFIED.

E. Casselberry and Gottschalk & Bantz for appellant.

J. M. & C. H. Krum for respondent.

PHILIPS, C.

In December, 1829, one Thomas Houghan, of St. Louis, sold and conveyed to one Larkin Deaver, of said city, a lot of ground in said city, for the expressed consideration of $5,000. The granting clause of this deed contained the following: “Have granted, sold, aliened, enfeoffed and confirmed, and by these present do grant, bargain, alien, enfeoff and confirm unto the said Larkin Deaver,” etc. The habendum clause contained the following: “To have and to hold said lot of ground, with buildings and improvements thereon, and all privileges, rights and appurtenances thereto belonging unto him, said Larkin Deaver, his heirs, assigns forever; and the said Thomas Houghan for himself, his heirs, executors and administrators, doth covenant with said Deaver, his heirs, executors, administrators and assigns, that the said Thomas Houghan, his heirs, executors and administrators, will forever warrant and defend the said lot of ground and every parcel thereof, unto him, the said Deaver, his heirs and assigns, against all persons, claims, liens, titles and incumbrances whatsoever, either in law or equity.” In February following said Larkin Deaver sold and conveyed this lot to one Joshua Walker for the same consideration expressed in the foregoing deed and containing the same covenants. In October, 1833, said Joshua Walker sold and conveyed the said lot to one Isaac Walker in exchange for certain real estate conveyed to said Joshua by said Isaac, said deed from Joshua containing the same covenants as the foregoing deeds. In June, 1857, said Isaac sold and conveyed said lot to Mrs. Mary L. Tyler, for the expressed consideration of $78,760, and containing the same covenants.

It appears that in 1814 said Houghan was married to Sophia Knapp, in the state of New York, and that she was yet living at the time of the institution of the suit hereinafter mentioned, aged about eighty-six. Larkin Deaver died intestate in 1850. His estate was duly administered, and finally settled in 1856. Houghan also died, and his estate was fully administered and closed, soon after the year 1862. There was nothing left of his estate after payment of debts, etc.

In October, 1863, said Sophia, as the widow of said Thomas Houghan, brought suit in the St. Louis land court, against said Mary L. Tyler, for the recovery of her dower interest in said lot, in which she recovered, on the 14th day of June, 1864, judgment for her said dower interest, computed at the sum of $433.35, together with costs of said suit, in all amounting to $542.54. It was further adjudged in said cause that the yearly sum of $650 be paid to her, as and for the yearly value of her dower in said premises during her life. Mrs. Tyler paid said damages and costs, amounting to $542.54, and in February, 1865, she instituted in the St. Louis land court, a suit against said Isaac Walker to recover the said sum, on the breach of the warranty and covenants in his said deed to her against incumbrances, by which action she recovered against said Isaac the sum of $564.05, which he then paid together with $20.15 costs. Each year thereafter, she, down to the year 1869, recovered and received from said Isaac the said yearly amount of $650, ordered as aforesaid to be paid by her to said Sophia (Mrs. Tyler having, during said time, paid the same to said Sophia,) making a total of $2,534.25 so paid by said Isaac in his lifetime. Said Isaac died in October, 1868, after which his administrator, Thomas Walker, continued to pay and refund to Mrs. Tyler, each year as she paid to Mrs. Houghan, down to the month of June, 1872, the said sum of $650, amounting in the aggregate to $2,600. In January, 1873, said Thomas Walker was removed from the executorship of said estate, and the plaintiff John G. Priest became administrator de bonis non of said estate. He continued each year to make said payments to Mrs. Tyler, as she had so continued said payments under the said judgment in partition aforesaid, down to the month of June, 1874, amounting in the aggregate to $1,300.

In February, 1879, the plaintiff, as administrator de bonis non, brought this suit to recover of the heirs at law the sum so paid as aforesaid. The petition alleges that the defendants are the heirs of said Larkin Deaver, deceased; that said defendants received as such heirs and legal distributees from the estate of said Larkin Deaver, assets much larger than the amount claimed from them in this action. The petition also sets out in detail the facts above stated, alleging that “by said deed the said Larkin Deaver covenanted to and with the said Joshua Walker, his heirs and assigns, that the said premises so conveyed were free and clear from all incumbrances, and that said Larkin Deaver also thereby covenanted to, by and with the said Joshua Walker, his heirs and assigns, that he and his heirs, executors and administrators would forever warrant and defend the said premises unto the said Joshua Walker, his heirs and assigns, against the lawful claims and demands of all parties whomsoever.” The petition also alleged notice to the said grantors and to the defendants of the institution of the several suits respecting said dower and by Mrs. Tyler against said Isaac Walker. The petition seeks to recover judgment against the defendants for the several sums paid by Isaac Walker in his lifetime, and the sums paid by Thomas Walker, administrator, and for the sums paid by the plaintiff, and interest on the several sums from the date of their several payments to the time of the trial.

The answer pleaded the general issue and tendeed the following special pleas:

1. That the detendants are not proper parties, but an administrator de bonis non should have been appointed and suit brought against him.

2. That the real estate did not increase in value while Larkin Deaver owned it; that by the first section of the act of the general assembly of the State of Missouri, entitled an act “Concerning Dower,” approved February 5th, 1825, it is provided that no widow shall be entitled to dower in any lands, tenements or hereditaments until all just debts due or to be due by her deceased husband shall have been paid; that said act continued in full force until the 4th day of July, 1835; that while said act was in full force, said deed mentioned in the petition from said Thos. B. Houghan and wife to Larkin Deaver, dated December 30th, 1829, was executed and delivered by said Thomas B. Houghan and wife to said Larkin Deaver; that said Thomas B. Houghan was the owner of no property, real, personal or mixed, at the time of his death, and, therefore, the plaintiff cannot recover any part of the alleged sums of money demanded in his petition; because such recovery would create a debt in favor of defendants against the estate of said Thomas B Houghan precisely equal to the amount so recovered, which would be in direct violation of said 1st section of said act of the general assembly, which forbade the widow from directly or indirectly creating any such debt by her own acts or by the acts of others whose proceedings were caused by her acts.

3. That at the time said Larkin Deaver conveyed the said real estate to the said Joshua Walker, the same including the buildings thereon, was worth the sum of $5.000, and no more, and that at that time there were buildings thereon of the value of $4,000, which buildings the said Isaac Walker, after the said premises were conveyed to him by the said Joshua Walker, tore down and removed therefrom; and the said premises, exclusive of the value of said buildings, were worth the sum of $1,000, and no more. Wherefore, if plaintiff shall be adjudged entitled to recover any damages on account of the alleged claim of Sophia Houghan, for dower in the said premises, the amount of such recovery should be measured and adjusted according to the value of said premises, exclusive of the value of said buildings.

The matters pleaded in the second and third special defenses were, on motion of the plaintiff, stricken out as constituting no defense.

On the trial the deeds evidencing the several conveyances aforesaid were read in evidence; also the record in the suit of Sophia Houghan for recovery of dower, and of Mrs. Tyler for recovery on the covenants of warranty against Isaac Walker; defendants objecting and excepting. The following admissions were made, to-wit:

1. That the property described in plaintiff's petition did not increase in value between December 30th, 1828, and February 21st, 1830, being the period whilst the title thereto was held by Larkin Deaver.

2. That Isaac Walker, after ne acquired title to the property, and about 1834 or 1835, took down and removed the improvements that were on the property, and erected and put up other and more expensive improvements, and the party to whom Isaac Walker conveyed the property put up additional improvements, which are now on the property.

3. That the improvements which were on the property in question while Larkin Deaver held the title thereto, did not exceed in value $2,000, and were worth $1,500 when he conveyed to Walker 4. That Thomas B. Houghan, about the year 1814, married Sophia Knapp, in the state of New York, who is now living in said state, aged about eighty-six years; that Houghan died August 20th, 1862, in the city and county of St. Louis, and by his will devised all his property to Wm. Essex, who administered on the estate of said Houghan; and that said estate has been fully administered, and after paying all debts allowed against said estate, and the expenses of the administration, there remained nothing to be distributed to the legatee or to pay debts.

5. That Larkin Deaver died in the year 1850; that the...