Ward v. Ashbrook

• Decision Date: 31 October 1883
• Citation: 78 Mo. 515
• Parties: WARD v. ASHBROOK, Appellant.
• Court: Missouri Supreme Court

78 Mo. 515

WARD

v.ASHBROOK, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from the Common Pleas Court of Tipton, Moniteau County.-- HON. E. L. EDWARDS, Judge.

AFFIRMED.

J. F. Taylor and John Cosgrove for appellant.

J. E. Hazell and Draffen & Williams for respondent.

MARTIN, C.

This was a suit for breach of covenant against incumbrances. By his deed of September 28th, 1869, the defendant conveyed the land in controversy to Mary J. Hardy and therein covenanted with her and her heirs and assigns, that he was seized of an indefeasible estate in fee simple in the premises conveyed, and that said premises were free and clear from any incumbrances done or suffered by him or those under whom he claimed, and that he had good right to convey the same. On the 23rd day of March, 1875, said Mary J. Hardy conveyed the same to plaintiff with the statutory covenants of title. The plaintiff, as the assignee of the defendant's covenants, brought suit upon them, alleging that an incumbrance existed in the form of a dower right in favor of the widow of the owner under whom defendant derived title, that dower had been demanded by her, and that he had been compelled to pay $100 in order to extinguish her interest and estate, and that this sum represented its reasonable value. The answer consisted of a general denial, with an averment that the widow referred to by plaintiff had previously released to defendant her inchoate right of dower by deed of September 24th, 1869. This was denied by plaintiff in his replication.

The case was tried by the court without a jury. The following is an agreed statement of facts:

“It is agreed that on the 2nd day of April, 1864, defendant purchased land, at sheriff's sale, under a distress warrant against A. B. Fisher, who had, at the time, the legal title; that the defendant sold the land to Mary J. Hardy and conveyed the same to her by deed containing the covenants mentioned in the petition; and that Mary J. Hardy sold and conveyed the same to plaintiff by deed containing the covenants mentioned in the petition. It is further admitted that at the time defendant purchased at sheriff's sale, Mrs. Martha Fisher was the wife of A. B. Fisher, and had dower in the land, and that afterward, during the lifetime of her husband, to-wit, on the 24th day of September, 1869, Mrs. Fisher made a quit-claim deed to the defendant, but in this deed her husband did not join; that afterward, A. B. Fisher died, and his widow intermarried with one Stewart, and they made demand for her dower, and plaintiff paid $100 for a relinquishment of the same, and if she had a dower interest at that time, it was reasonably worth $100.”

There was some other evidence admitted corroborative of this statement, and some excluded which was contradictory of it. The previous release of dower right by the widow which was pleaded by defendant consisted of a deed made by her in the lifetime of her husband to which he was not a party. This deed was properly excluded. It was...