Carey v. West, 165 Mo. 452

165 Mo. 452 | Mo. | 1901

In Division Two,

BURGESS, J.

This is the second appeal in this case. It was before this court at the April term, 1897, and is reported in 139 Mo. 146. At that time several tracts of land, other than the tracts involved in this appeal, were in controversy. The judgment of the trial court was affirmed (which was for the defendants) as to all the land except three forty-acre tracts, which are referred to and described in the record and decision, as the three east forties, designated on the plat as 1, 2 and 3. As to these three forties it was held by this court, that the defendant, Sarah M. West, had bought them at administrator’s sale, and paid for them; that because of irregularities in the proceedings in the probate court she acquired no title; that as she acquired no title she was entitled to a lien on the land for the purchase money paid by her for it, which should be paid before the assignment of her dower; and, that the trial court committed error in allowing compensation for improvements before dower should be assigned. The judgment was, therefore, reversed and the cause remanded for the ascertainment of the amount of the purchase money paid by her for each forty and the interest thereon, and in accordance with these rulings, defendants filed separate answers in which they asked to be reimbursed the purchase money before the widow’s dower should be assigned.

The trial court, however, construed the former decision as leaving open for investigation the sale and purchase by Mrs. West of the lands in question, went into all the facts and details of the administration, including the charges of fraud in the management of the estate, and found that there was no fraud, but found that the purchase money was not paid. Defendants appeal.

All the legal propositions presented by this appeal, and passed upon by the court below upon the last trial were passed upon by this court when the case was here before, and, therefore, the law of the ease settled. [Chouteau v. Gibson, 76 Mo. 38; Overall v. Ellis, 38 Mo. 209; Metropolitan Bank v. Taylor, 62 Mo. 338; Chapman v. Railroad, 146 Mo. 481; May v. Crawford, 150 Mo. 504; Bealey v. Smith, 158 Mo. 521.]

In Baker v. Railroad, 147 Mo. 140, it is said: “When a ease like this is reversed and remanded, it is in effect a direction- to the court to retry it according to the law as declared in the opinion, and to decline to do so, would at least subject the trial court to criticism.”

We therefore reverse the judgment and remand the cause with directions to the court below to ascertain the amount of purchase money paid for each forty and interest thereon, to be a lien upon the land, and, to be paid before assignment of the widow’s dower.

Sherwood, P. J., dissents; Gantt, J., concurs.

In Banc.

PER CURIAM.

The foregoing opinion of Burgess, J., in Division Two, is approved and adopted by the Court in Banc.

Burgess, O. J., Robinson, Brace, Marshall, Valliant and Gantt, JJ., concur; Sherwood, J., dissents.