Wells' Guardian v. Moore

• Decision Date: 31 July 1852
• Citation: 16 Mo. 478
• Parties: WELLS' GUARDIAN, Appellant, v. MOORE, Respondent.
• Court: Missouri Supreme Court

16 Mo. 478

WELLS' GUARDIAN, Appellant,

v.MOORE, Respondent.

Supreme Court of Missouri.

July Term, 1852.

1. Under the act of Congress of March 3d, 1843, a widow is not entitled to dower in land to which her husband had a mere right of pre-emption, which had not been consummated at the time of his death.

Appeal from Platte Circuit Court.

Hayden, for appellant.

The wife of Moore is not, as the widow of Horeb Wells, entitled to dower in the land in controversy, because, 1. Horeb Wells was not, nor was any other person to his use, seized of an estate of inheritance in the land at any time during his life. 2. At the death of Horeb Wells, the land belonged to the United States, in law and equity, and the defendant, Moore, purchased it with the money of complainants, as their guardian, and thereby it became their land, and not the land of the deceased. 3. The mere possession of the land by Horeb Wells, at the time of his death, was not such an interest in the land as a court of equity could enforce, in his behalf, against the government, and having been abandoned to the complainants by Moore, he cannot resist the rights of the plaintiff asserted in this suit, nor can the court take into consideration the widow's claim, if she had any, as she is not a party to this suit.

SCOTT, Judge, delivered the opinion of the court.

This was a bill in chancery, filed by the complainants, by their guardian, against McLain Moore, the defendant, for an injunction and relief. The complainants were infant children of Horeb Wells, who died in 1839, leaving a widow, Rachael Wells. Horeb Wells, at the time of his death, was residing on a quarter section of land, in township fifty-three, range thirty-six, and was entitled, under the act of Congress of 22d Juue, 1838, to prove a right of pre-emption to, and enter, the said quarter section. He died, however, before this was done. His widow and children remained on the land. In 1840 Moore, the defendant, intermarried with Mrs. Wells, the widow of Horeb Wells, and lived with her on the quarter section to which her former husband was entitled to a right of pre-emption. Moore afterwards, on the 14th May, 1844, entered the land for the heirs of Wells, and took a certificate in pursuance to the act of March 3d, 1843. After entering the land, Moore committed waste, and made profits of the timber growing upon it. This bill was brought for an injunction and account. On a reference, the commissioner, in stating the account, acted under the view that the widow of Horeb Wells was entitled to dower, and allowed the complainants the profits of two-thirds of the land. This action of the commissioner was sustained by the court below, and an appeal was taken to this court. So the only question in the case is whether Mrs. Wells, the widow, was, under the circumstances, entitled to dower in the land on which her former husband lived at the time of his death.

1. We are at a loss to find any ground upon which the widow's right to dower in a claim to a pre-emption by her husband can be sustained. The justice of such a claim is obvious, and it is a little remarkable that it should have been overlooked by the Congress of the United States, especially as the contingency of the death of the pre-emptor was in contemplation...