52 Mo. 98 | Mo. | 1873
delivered the opinion of the .court.
As the court sustained a demurrer to the petition it will be necessary to examine the same and see whether it stated facts sufficient to warrant a judgment for the plaintiff.
In substance it is alleged that before 1859, plaintiff was the
That while so acting said Braly employed counsel to make disposition of said real estate on behalf of the estate of the said Abraham; representing to the counsel that said Abraham was possessed in fee simple of the lands, and directing him to proceed and have the dower of the plaintiff set apart, and the remainder sold for purpose of partition; that she had nothing-to do with directing the counsel nor any information as to what her rights were in the land; that suit was instituted making plaintiff and her then husband together with others, heirs of the said Abraham, plaintiff, and Boggens who purchased the land at the partition sale and his wife, who was a daughter of the said Abraham Creek, defendants.
This petition contained the usual and ordinary averments of a petition for partition, and to set apart dower. The defendants entered their voluntary appearance, and judgment was rendered by consent. A part of the land described in the petition was assigned to plaintiff as dower. The court then ordered the remainder of the land to be sold in partition, and at the sale Boggens and Stevenson who were interested parties and were fully advised of the rights of the plaintiff, .became the purchasers.
It is further averred that they were not in any wise misled on account of any act or representation of the plaintiff.
It is further alleged that no final disposition of said cause in partition has yet been made, and the prayer is that the said proceedings be set aside and for other relief &c.
In Thompson vs. Renoe (12 Mo., 157,) it was expressly held by the court that when a widow claims land in her own right, the fact that dower has been allotted her does not estop her or those claiming under her from asserting such rights. In the case just referred to it appears that the widow was unacquainted with what were her real rights and acquiesced in the allotment of dower. Yet it was adjudged that neither she nor her heirs were barred or concluded. In the case of Hempstead vs. Easton, (33 Mo., 142,) it was decided, that the recitals in a deed, by which a married woman purported to convey her title to land, did not estop her nor those claiming under her from asserting the truth against the recitals. In Glidden vs. Strupler, (52 Penn. St., 400,) a married woman by agreement contracted to sell land; she received one year’s interest and a small part of the purchase money. The purchaser took possession and made improvements with her knowledge and encouragement, and the court held that neither the principle of estoppel nor compensation would prevent her recovering the land. It is manifest that in the proceeding for partition and in the matter of the allotment of dower the court acted under a misapprehension of law in reference to the legal title to the land. That the plaintiff’s name in conjunction with her husband was used as a party to the record cannot impair her right or prer vent her from asserting her title. She avers pointedly that she neither encouraged nor induced any party to change his condition in the premises, and that the other parties and the purchasers possessed the same knowledge that she did. Under the circumstances of this case there is certainly no rule of law which would prohibit her from maintaining her suit for the as
Wherefore, I am of the opinion that the judgment should be reversed and the cause remanded.