Waller v. Mardus

• Decision Date: 31 October 1859
• Citation: 29 Mo. 25
• Parties: WALLER et al., Appellants, v. MARDUS et al., Respondents.
• Court: Missouri Supreme Court

29 Mo. 25

WALLER et al., Appellants,

v.MARDUS et al., Respondents.

Supreme Court of Missouri.

October Term, 1859.

1. The mere right of a widow to dower before an assignment to her is not such an interest or estate as can be levied on and sold under an execution against her or a subsequent husband; the dower must first be assigned to the widow.

2. Should the mere right of a widow to dower before assignment be levied on and sold under a judgment against a subsequent husband, the purchasers would not be creditors within the meaning of the thirty-first section of the dower act of 1845 (R. C. 1845, p. 435), or the thirty-eighth section of the dower act of 1855 (R. C. 1855, p. 676).

Appeal from Monroe Circuit Court.

Demurrer to a petition. From the petition it appeared that Nathan H. Mardus died in the year 1853, seized and possessed of certain real estate, leaving a widow, Parmelia Mardus, and children. In 1855 said widow intermarried with Solomon Stickell. Certain creditors of said Stickell obtained judgments against him for debts contracted after said intermarriage, and executions were issued thereunder, and his interest in his wife's dower interest in said real estate was levied on and sold, and the plaintiffs became the purchasers. The plaintiffs pray that the dower interest may be assigned to them, and that commissioners be appointed to assign the same. The court sustained the demurrer.

Carr & Pindall, for appellants.

I. The widow continued in possession after the death of her husband. Her second husband continued in possession until the sale by the sheriff. She was entitled to possession until the assignment of dower. The estate was a freehold for life unless sooner defeated by the petition of some one of the parties named in the thirty-first section. R. C. 1845, p. 435; 3 Halst. 129.) A widow may assign her dower right, and possession may be recovered by ejectment. (Stokes v. McAllister, 2 Mo. 163.) If she had become indebted during her widowhood, her creditors might have obtained judgment against her, and levied on and sold her interest. It may be subject to the payment of the debts of her second husband contracted after marriage. (2 Harr. & Gill, 443.) Upon the marriage to Stickell, he became seized, jure uxoris, of the freehold interest vested in her, and it became subject to the payment of his debts. (27 Mo. 140; 20 Mo. 271; Bright on Husband and Wife, 136; R. C. 1855, p. 740, 753; 16 Mo. 129; 17 Mo. 394, 519; 5 Blackf. 309; 2 Pick. 316; 2 Rand. 120.) The husband's interest in the wife's dower may be sold previous to an assignment. The plaintiffs became substituted by their purchase to all the equity and rights of the husband's creditors. They are brought within the meaning of the thirty-first section of the dower act. (Rankin v. Harper, 23 Mo. 579; Eddy v. Baldwin, 23 Mo. 588.) The sheriff's sale operated as an equitable assignment of Stickell's interest. Plaintiffs are substituted to the rights and equities of the husband. (4 Rawle, 468.)

Howell, for respondents.

I. The interest of the widow of Mardus was a mere right to have dower assigned. It was not a vested interest in specific land. It was not averred in the petition that the land was the mansion house of the former husband, or the messuages or plantation thereto belonging. She had no right of possession. There was no assignment to the widow. Besides, it is not her interest that was levied on and sold. It was that of her husband. (10 Mo. 746; 14 Mass. 378; 5 Greenl. 479; 1 Co. Litt. 584; R. C. 1855, p. 672, 676, § 21, 38.)

SCOTT, Judge, delivered the opinion of the court.

This is a suit, by purchasers under an execution at a sheriff's sale, against a former widow and her husband, to have her dower in her first husband's estate assigned to them. N. H. Mardus was seized of lands, and died, leaving Parmelia Mardus, his widow, who was entitled to dower in his estate, but which was never assigned to her. She, Parmelia, intermarried with the defendant Solomon Stickell, who during the marriage contracted debts for which he was sued, and, judgment having been recovered, afterwards executions issuing to Monroe county, Mrs. Stickell's dower interest in her former husband's estate was sold, and the plaintiffs became the purchasers. On these facts judgment was rendered against the plaintiffs.

The wife being seized of a life estate in her own right, her interest may be sold for debts contracted by her husband during the coverture for so long a...