— This is a suit instituted by Harriet Bartlett, widow of William PI. Bartlett, deceased, for tbe assignment of dower in lots 1, 2, 5 and 6, in block 19, in William Luce’s addition to tbe city of Louisiana, Pike county, Missouri. It was instituted on the--day of May, 1898, and tried in December, 1898. There was judgment for plaintiff, a motion for a new trial, and in arrest of judgment, and appeal duly perfected.
The lots in question are a part of a tract of seventy acres conveyed to William H. Bartlett, husband of respondent, by deed from his mother, Elizabeth Mann, and his stepfather, Marshall Mann, dated April 22, 1822, the consideration being parental love and аffection. On the 4th day of February, 1830, respondent was married to the said William H. Bartlett, and on the 18th day of March, 1830, the said Bartlett executed a power of attorney, in which he was not j oined by respondent, vesting his attorney with full power and authority to sell and convey the said tract of land. The same was sold under the power given, and a deed executed to one Edward Charless on the 15th day of November, 1830. The deed contains the following covenant of warranty: “And I, the said Bartlett, doth further covenant and agree for himself, his heirs, executors and administrators, to warrаnt and defend said title in the said Edward Charless free from all claim or claims, or by any person in, through, or by him,' the said Bartlett, or in, through or by any other person or persons whosoever, or by any nature whatever in the premises fully and completely.”
The appellant claims title through mesne conveyance from Charless, about which there is no controversy.
W. H. Bartlett, husband of plaintiff, died at Yonk
Plaintiff testifies that she knew about the execution of the power of attorney by her husband to Mann shortly after their marriage — that she was not asked tо sign it.
It sufficiently appears from the pleadings and evidence in the cause that the property in question is situated in Luce’s addition to the city of Louisiana, embracing the resident portion of said city.
The letter of Mann, requesting power of attorney from W. H. Bartlett, was introduced in evidence. It is as follows:
“Louisiana, February 20, 1830.
■“Dear William:
“A short time after I wrote to you I tuck a notion to gow to Tennessee, and just got home last nite, and I received your favor of the 27th December., whitch gave me great pleashur to hear from you. When I was in Tenness'ee I formed an acquaintance with a lаdy, an old made about thirty years of age. I set in to coting of her and got her consent to marry, and I am to return back and marry her in May next. She is a verray fine woman, strict methods and has about twelve or fifteen slaves and sum money. She is not as well accomplished as I woold wish; I woold have married hur when I was there but my embarresments kept me from it an if you will doo me the favor to let me sell this peas of land that you have hear it will cler me of my embarresments. I can get a good price for it and I will do more than double reward you for your goodness in so doing. I can sеll my property hear in town, but I do not wish to sell it for I wish to have a home to gow too when I marry, or I can sell Tom, but to sell him is like parting with a child; and if you conclude to let me sell the lands hears is the Number and description of the land enclosed in the within letter. Yours and your ladys company would be verray grati
“W. H. 0. Bartlett. M. Mann.
“N.--B. Pleas send me a power of attorney to sell the land if you can grant me the favоr that I requested of you and I will give you any security what, you may request.
“W. H. C. B. M. Mann.”
The power of attorney was executed by Bartlett as requested; but his wife, now the respondent, did not join in such instrument
Marshall Mann, in pursuance of the power of attorney executed and delivered to him, conveyed the land, to one Charless.
There was some testimony tending to show that Bartlett’ had never been in the actual possession of the land, in which the dower of the plaintiff is sought to be admeasured, and that neither Marshall Mann nor Bartlett had any property at the time of the execution of the deeds introduced in evidence, and that Mann was financially embarrassed.
-It is disclosed by the record that a jury had been empaneled to try this cause, and at the close of the evidence by agreement of parties, the jury was-
“The court instructs the jury that under the pleadings and all the testimony given in evidence in the case the verdict should be for the defendant.
“The court instructs the jury that if you believe from the evidence in the case that the conveyance from Marshall Mann and wife of April 22, 1822, to W. H. Bartlett read in evidence in this case, was made by Mann not for the purpose of conveying the ownership of said property to said Bartlett, but for the purpose of having said Bartlett hold the title for him, the said Marshall Mann, and that the same was so held by said Bartlett until the execution by him of the power of attorney, read in evidence in this case, of date November 15, 1830, from said Bartlett to said Mann and that the same was executed by him for the purpose of reinvesting said Mann with, the title to said land for his o,wn use and benefit, or for the purpose of permitting him to dispose of the same for his own use and benefit in accordance with the original purpose of the conveyance of said land from Mann to Bartlett as hereinafter stated, then the verdict should be for defendant. ’ ’
Which instructions the court refused to give. To which ruling and action of the court defendant duly ■excepted at the time and saved his exceptions.
Upon the submission of the cause to the court, it made the following finding and entered the decree as herein quoted:
“Now at this day come the рarties by their counsel and a jury having been waived by said parties, all and singular the matters are submitted to the court, which having been seen and heard, the court doth find that the plaintiff, Harriet Bartlett, on the 4th day of February, A. D. 1830, married William H. Bartlett at the city of Newport, in the State of Rhode Island; that she lived with him thereafter as his wife until the time
From this decree, appellant, in due form, has prosecuted his appeal.
The contentions of appellant, as disclosed by this record, are:
First. The husband of appellant was never seized of an estate in fee of the premises in question. He merely held them in trust for another.
Second. The property was conveyed by deed of general warranty by the husband of respondent in 1830, which was not executed by the wife, and her inchoate right of dower, if she had any, constituted a breach of the covenant at the time it was made.
Third. The husband died in 1893 and the dower right of the widow, if any, was subject to the provisions of section 8839, Revised Statutes 1889, which operates as an estoppel against the widow until all claims for damages for breach of the covenant contained in Bartlett’& deed are ascertained and satisfied.
Fourth. Parties resident in this State should not be compelled to go into a foreign jurisdiction in order to hunt up property to satisfy any damages sustained by the breach of a covenant of warranty in the conveyance of land located here.
It will be observed that this case presents identically the same questions involved in the case of Bartlett v. Ball,
Counsel for appellant very earnestly and ably pre
The contention in this case, that plaintiff: is es-topped under the provisions of section 8839, Eevised Statutes 1889, until all claims for damages for breach оf the covenant contained in Bartlett’s deed by attorney in fact are ascertained and satisfied, was the main question presented in the case of Bartlett v. Ball, supra. Sherwood, J., fully discusses'that feature of the controversy, and that we may fully appreciate his review of the authorities and the conclusion reached, we here quote from his opinion on that subject. He says:
‘ ‘ The law of 1825, volume 1, revision of that year, page 333, when speaking of a widow’s seeking enforcement of her dower, declares: ‘Nor shall she be entitled to dower in any lаnds, tenements or hereditaments, until all just debts due or to be due by her deceased husband have been paid.’ This law was repealed in 1835. Touching this law it has been ruled that it has no bearing in favor- of anyone except a creditor of the estate, to whom, of course, a debt is owing. As the matter is concisely put in Thomas v. Hesse,
“There are other reasons for doubting whether plaintiff is either estopped or barred from maintaining her action.
‘ ‘At common law the heir was .not bound by the obligation of his ancestor, only when expressly named; so that in an action against him as heir the. averment was necessary that he was named in, and bound by, the obligation; and in addition to that, another requisite to recovery was that he should have assets by descent sufficient to meet the demand. And the same doctrine prevailed as to the nеcessity of expressly mentioning a devisee in a covenant in order to bind him. [Rawle on -Cov. (5 Ed.), secs. 309, 311, 312; Tiedeman, Real-Prop. (Enlarged Ed.), sec. 856.] Nor could the land be followed in his hands; he took the land, clear of all liabilities. [Ib. Plasket v. Beeby, 4 East, 485; Plunket v. Penson, 2 Atk. 290.]
“Upon this feature the learned author already cited observes: ‘ To prevent the injustice of a devise depriving a specialty creditor of means of satisfaction, the second section of .the statute of fraudulent devises (3 Will. & Mary, c. 14) reciting that many persons, after having bound themselves and their heirs, had diеd seized of lands, and to the defrauding their creditors had devised the same, so that the creditors had lost their debts, declared that all wills, etc., should be taken,
“In Sauer v. Griffin,
“As under our laws of administering'estates the obligations of the decedent, whether testate or intestate, bind the .assets of the estate in the hands of the heir, no matter what form those obligations may assume, and as the section quoted makes a devisee equally answerable with an heir, it must be held, speaking in a general way, that the defect previously existing in the law was cured by the amended section. •
“But further observations on that section and its application to the facts of this particular case are thought to be pertinent. It is to be noted that the covenant in question, though it mentions heirs, does not
“Nor is it to be forgotten that retrospective laws are forbidden eo nomine by our State Constitution; and when this is the case it is immaterial whether or not the act interferes with vested rights. [Cooley’s Const. Lim. (6 Ed.) pp. 454, 455; Black’s Const. Law, par. 197, p. 543.] There is nothing, however, in the section which gives indication of other than prospective operation; if it did it would contravene the Constitution. The aspect of the section is altogether toward the future; it lets the ‘dead past bury its dead.’ And as the wife’s right to dower is inchoate, is in expectancy, and does not become vested until the death of the husband, it follows, of course, that such right may be modified or .entirely abolished by the. Legislature without contravening any vested right protected by the organic law. [Black’s Const. Law, 430, 431; Cooley Const. Lim., 440, 441, and cases cited; Venable v. Railroad,
“But it is not thought that the section under consideration was intended to affect, obstruct, or defeat the inchoate dower right of a wife, or such right when it becomes absolute in a widow by reason of her husband’s death. The Legislature of this State, over fifty years ago, enacted the following section in regard to dower:
“We are therefore of the opinion that a reasonable construction of the two sections requires that in so far as the widow’s dower is concerned, but no further, she may still be a devisee, and her mere dower right remain unaffected. This construction, we think, best comports with the legislative intention. Furthermore, the law of 1825 already quoted relates only to ‘just debts due or -to be due; ’ and in England, upon a similar statute, it was ruled that as, it only spoke of ‘ debts and actions of debt,’ an action could not be maintained against a devisee of one who had given ‘covenants for title.’ [Wilson v. Knubley, 7 East 134.] To remedy this an amended law was passed which included ‘ covenants ’ as well as ‘ debts. ’ Moreover, it will not be presumed that the Legislature intended that the Act of 1825 should operate beyond the boundaries of this State, and had such been the intention it would have been wholly inoperative. [Wilson v. Railroad,
We have carefully reviewed the authorities cited in the opinion, and we find that they fully support the conclusions reached. The opinion is an able and exhaustive review of the authorities upon that subject, and is a full and fair discussion of the point presented. If the views there expressed and the conclusion reached as to the estoppel of a widow in her claim of dower, need any additional-emphasis, we will quote the positive and emphatic position taken by this court in the case of Blevins v. Smith,
“We have by statute' adopted the common law in regard to dower. Lord Coke says: ‘ There be three things highly favored in law, life, liberty and dower.’ Chief Justice McKean, in Kennedy v. Nedrow,
“ ‘It is a right in law fixed from the moment the facts of marriage and seizin occur, and becomes a title paramount to that of any person claiming under the husband by subsequent act.’ [Grady v. McCorkle,
We see no reason for departing from the law as declared by the court in Bartlеtt v. Ball. It is comparatively a recent utterance of this court, correctly declares the law, and finds support both in reason and authority.
. This leaves but one question to be noticed, that is the contention that Bartlett simply held the land in suit in trust for Marshall Mann, hence, did not have such an estate in the land as would entitle the respondent to dower. In other words, it is claimed that while the deed to Bartlett from Mann- was absolute on its face, and conveyed an estate in fee, yet the facts in this case would warrant the conclusion that there was an implied trust. There is nо writing, so far as the record in this case discloses, creating a trust, hence, if any effort was made by the parties at the time to attach a trust to this land, it must have been done by parol.
If the conveyance of this land by Mann to Bartlett was a gift, the rule announced by Thornton on Gifts would apply. It is there said in the text:
“A gift by a deed, absolute on its face, will defeat a parol trust or reservation in the donor’s favor. It has the effect of an unconditioned gift, the trust being void.” [Thornton on Gifts and Adv., p. 373.]
This is not that character of cause in which a parol trust, even if positively shown, could defeat the claim of the widow for dower. If Marshall Mann was alive and in possession of this land, under a re-conveyance to him by Bartlett without his wife joining in the con-, veyance, in a suit against him for the assignment of
We have examined the evidence in this cause, and even viewing it in the most favorable light for appell-. ant, we think it absolutely fails to establish a trust.
There are many cases in equitable, jurisprudence where on acсount of fraud or mistake, resulting trusts are declared upon, parol evidence. [Weiss v. Heitkamp,
This does not belong to that class of cases. The deed from Marshall Mann and wife to Bartlett was absolute on its face, and for this court to announce the precedent, from the facts in this case, that a parol trust existed, and that Bartlett was simply a trustee, and thereby defeat his widow’s claim of dower, would not be in harmony with the letter or spirit of our statute on that subject.
There was no error in the refusal of the trial court to give instruction numbered 2, asked by the defеndant.
W. H. Bartlett died in 1893, hence, the law in force at the time her dower interest attached, was section 4535, Revised Statutes 1889, which provides: .
“The widow shall have dower of real estate, although there may have been no actual possession or recovery of possession by the husband in his lifetime, and although the same may have been held by him
It is apparent from this section that no actual possession on the part of Bartlett was necessary in order to entitle the widow to dower. [Davis v. Evans,
We have carefully considered all the facts in this ease as disclosed hy the record, and we are of the opinion that the findings of the trial court were correct, and its judgment will he affirmed.