Cazier v. Hinchey
44 S.W. 1052
Mo.
1898
Check Treatment
Brace, P. J.

This is an action for assignment of dower in two hundred and five and one-half acres of land in Clinton county, brought in the circuit сourt of'that county, and thence taken by change of venue to the circuit court of Ray county. From the judgmеnt of the circuit court of Ray county assigning plaintiff dower in said land and for damages, the defendant appеals.

The common source of title is James Cazier, who died in the,year 1891. The plaintiff and James Cazier were mаrried in Kentucky on the twenty-seventh of May in the year 1839, and thereafter lived together as man and wife for several years and until the breaking put of the war with Mexico, when he enlisted as a soldier and thereafter never returnеd to his wife and his children by her born of the marriage, then living in the State of Illinois. They ‍​‌‌‌‌​‌​‌​​‌‌​​‌‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‍were never divorced. In 1849 when Cazier was next heard of' he was living in Iowa with a woman whom he claimed to have married in Missouri about a year beforе that time, and whose name prior thereto was Elizabeth Oyler. Upon hearing that her husband was living near Council Bluffs, Iowa, the plaintiff, about the year 1851, with their children, went to his place in Iowa, but finding this condition of affairs returned with her children to the *207State of Illinois, where she has since continued to reside. In 1856, Cazier and wife number two moved to Missouri and hе acquired title to part of the lands in controversy during that year; and to the remainder in the years 1857 and 1859, and therеafter remained in possession of the same until by mesne conveyances from him his title to the land passed to the defendant, under which he claims and is now in possession. After Cazier had ‍​‌‌‌‌​‌​‌​​‌‌​​‌‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‍conveyed the premises and in the year 1865, he left the State. During all the time he resided in Clinton county he lived with wife number hvo. She joined with him in the deeds of conveyance, and thеy conducted themselves in all respects as man and wife. She died in March, 1891. Cazier died in Idaho in October, 1891, and this suit wаs commenced on the nineteenth of July, 1893. By the judgment of the court sixty-seven and one-half’ acres of the land was assigned to the plaintiff as her dower, and damages for the detention thereof since the institution of the suit assessed at the sum of $165 was adjudged in her favor. The errors insisted upon in this court for reversal are the exclusion of thе deposition of William Oyler, the admission of copies of the deeds of conveyance in Cazier’s chain of title in evidence, the assignment of the whole dower in a single tract of land, and that no deduction for taxes was made by the commissioners in assigning the dower.

1. William Oyler was a son of Elizabeth, wife number two, by a former marriage,» аnd was between five and nine years of age when plaintiff visited her husband’s place in Iowa and found him and the mother of witness living together ‍​‌‌‌‌​‌​‌​​‌‌​​‌‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‍as husband and wife. The substance of his deposition is that at that time there was some sort of аn agreement made between plaintiff and James Cazier by which he was “to give her so much of the propеrty, some money, and she *208was to never come back to him;” that some writing was drawn at the time by a Mr. Dalrimple, who hе thinks was a justice of the peace; that he saw this writing afterward in Missouri in the year 1856; that all the information he had in regard to its contents was derived from what his mother told him. It is quite too plain for argument that the court committed no еrror in rejecting this evidence which was purely hearsay in character, and did not tend to prove the exеcution of such an instrument in writing as could have the effect of barring the plaintiff’s right of dower, or of such conduct upon her part as would estop her from asserting, it.

2. The court committed no error in admitting certified copies of the record of the deeds in Cazier’s chain of title after evidence tending to prove that the originаls were not and never had been in plaintiff’s possession, had been first introduced, as was done in this case. While а widow ‍​‌‌‌‌​‌​‌​​‌‌​​‌‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‍suing for dower is not held to strict proof of her husband’s title, as she is not the keeper of his title papers, and while proof of possession of the husband under claim of title during the marriage and proof of possession of the defendant under the husband when suit is brought are prima facie sufficient evidence of the husband’s seizin and the widow’s right to dower upon the death of the husband ( Gentry v. Garth, 10 Mo. 227; 2 Scribner on Dower [2 Ed.], p. 212, sec. 19 et seq.)-r plaintiff’s proof in this case went further, showing title in her husband during the marriage, possession of the husband under that title, his subsequent conyeyanees of the premises in which she did not join, the acquisition ‍​‌‌‌‌​‌​‌​​‌‌​​‌‌​​‌​​‌​‌‌‌​‌‌​​‌‌​​​​‌‌​​​‌​‌​‌‍of the title thus cоnveyed by the defendant, his possession of the premises under that title at the time suit was brought, and the death of her husbаnd, thus completely making out her case beyond a cavil or a doubt.

*2093. In support of the third assignment of error the case of Thomas v. Hesse, 34 Mo. 13, is cited. In that case it was held that where several parcels of land in which a widow had a right of dower was held by different persons her dower should be assigned in each parcel separately. In this case however all the land was held by the same person, and there was no reason of necessity for assigning dower in each parcel. The commissioners did right in assigning it аltogether.

4. We find nothing in the abstract to indicate that the commissioners in assigning the dower were not governed by the principles laid down in Bannels v. Washington University, 96 Mo. 226, which is cited in support of the fourth assignment of error, or that the court before whom thе case was tried without a jury did not take into consideration the question of taxes if any such there was in the case, in the assessment of damages. Counsel for appellant contend in their argument that under the circumstanсes of the case the plaintiff should be estopped from asserting her right to dower, but upon no known principle of the law can this be done; and finding no error in the trial of the case affecting the merits, the judgment of the circuit court is affirmed.

All concur.