*1 op 315. Yol. grant purpose appear plaintiff and effect of motion to be the through rehearing upon plaintiff a ground the matters, these on De- misunderstanding some from or misinformation the clerk after cember had a meri- hearing plaintiff 20th had the had no and favorably torious Construing cause of this most action. motion plaintiff, the December 20th it is a motion to aside the order of set setting and previous aside 7th and 18th the orders of October Decem- granting rehearing ber 6th and the motion to set aside said a on days being twenty former after the orders. motion filed date Such a sought aside, the order it to no more than it to set amounted suggestion to aside its order of its own the court that it should set during not carry motion term and does judgment same term or a succeeding terms, ease over to the next term or failure keep suggestion the court to act at the term time does not upon such judgment finality becoming order or the end the term rights hold that continues to be such all time. We for suggestion party court of of a its own motion or mere judgment expire to set aside a judgment or order with the close of the timely term unless motion filed. The motion filed was W. timely Trimble, motion. ex rel. 277 S. Conant [State 916.] judgment From what has said it fоllows that been concur, except All circuit court is It is so Graves, affirmed. ordered. J., absent. Falvey Mary Agnes al., Appellants.
Patrick et al. v. et Hicks July 30, One,
Division Assign Respondent’s 1. APPEAL: Dismissal: Failure Error. motion appeal ground appellant’s assignments dismiss brief do not been committed on the out set distinctly specifically have state claimed to errors overruled, court, required the trial will be Rule where, assignments made, general, of the five the first is law second too assigns by appellants, error the the in the refusal of declarations offered assigns giving respondent, fifth offered error declarations assigns admitting respondent, and the third fourth is that and especially error evidence against against weight evidence decree is law evidence wrong party; and is for the the law under substantially grounds so, in the motion for where these trial, Fact” have appellant’s “Points counsel under of Law a new stated phases of evi- made them under various certain contentions support thereof. and cited authorities dence Equity: A suit Title Adverse Possession. At Law or 2. ACTION: possession, the'principal a claim to land founded on issue is in asserted period good openly and maintained and in faith as taken that, law; by statute, and the fact prеscribed action at limitation partition count a decree in the same claim and with the in connection is finding wholly dependent upon the asked, being mere incident v. Hicks. title, under the issue of does not convert the case into a suit equity. Nor jury, does the. fact that the record shows no waiver of a but does show requested law, that both sides declarations of alter the fact that it is an action at law. *2 3. ACTION AT appeal judgment LAW: Substantial Evidence. On law, finding in an action at less there is an the of the trial court not will be disturbed un- it, absence of substantial evidence to sustain error was rejection committed evidence, giving the admission or or in the or re- fusal of declarations of law. 4. LIFE ESTATE: upon Homestead. Under the law in force in death of the children, owner intestate and without his vested widow became property by with an estate occupied by for life in owned him and them as a home. 5. deed, Tax Sale. pursuance The sale and sheriff’s executed in _-: judgment a veyed brought against alone, in a suit for taxes the life tenant con- purchaser estate, to the the life and no more. Where the life estate brought against was the homestead of a and the was suit for taxes only, conveyed the sheriff’s deеd under than the execution no more title and interest she owned. brought against 6. -: Interests of Remaindermen. In a suit for taxes alone, the life tenant interests and estates of the remaindermen aro by judgment affected and a sheriff’s sale and deed thereunder. by purchaser 7. -: -: Adverse at a Possession. Possession sale, brought against only, tax in a suit for taxes life tenant obtained after come life estate and the estate in remainder been created and be- law, estate, during operation fixed is not adverse to the remaindermen only the life life tenant or the continuance of her as to the but is adverse grantees, possession and on her death title such terminates only remaindermen, begins at her and as them to be adverse During stranger the life title death. the continuance of estate a thereby possession against acquire as life an adverse tenant establish estáte, during cannot the existence of the life estate he title to the.life possession against as the remaindermen whose interests an adverse establish by limitations, vested, for as to them of their interests are to bar so begin until the to run of Limitations does not remaindermen Statute the life death of tenant. clearly it is admitted or Instruction. Where 8. ADVERSE POSSESSION: in re- a vested estate was a vested life estate and that there established by purchasers against at a brought remaindermen mainder, tax sale and suit is alone, against brought a declara- the life tenant in a suit for taxes entirely ignores the time when the life estate and lawof tion they are entitled began, purchasers and declares possession to recover ten was open for exclusive^adverse have been years suit when the dead nine years, had been when the life tenant clearly case, instituted, of law in such A declaration erroneous. bald open ad- the and exclusive purchasers have been declaring if such land, ignores years are the owners possession verse during the remaindermen no adverse there could be law that the excludes, pertinent tenant, a consideration the life life of facts. Question LAW: 9. DECLARATION OF Mixed of Law and Fact: Adverse Ignoring Life sitting Estate: Inclusion of Possession: Defenses. A court try questions jury give of mixed law and fact a law should declarations applicable occupied to the case. owner and his wife a lot as a children, death, intestate and without until his and his widow’s home a life estate until her death in 1912. In therein was 1898 suit fоr op ááé Vol. 315. brought against obtained, taxes alone, judgment land the widow conveyed by plaintiffs, sold under entered execution and who the sheriff to into nine thereafter. continued in death, plaintiffs, claiming limita- after the widow’s tions, brought homesteader, suit and at the heirs at law the jury declaring trial if gave without a the court a declaration lawof open physical possession had been in the exclusive years they Held, owners, for ten were the and rendered them. merely non-direction, propriety that the declaration of law was not of such a declaration is not to the rule that instructions be determined jury defenses, question to a need not in all for de- cases state the but the fact, cision was a mixed one of law and the declaration excluded con- remaindermen, estate, rights sideration of the existence of the life expired, the time when the life estate of action time when remaindermen, could accrue Limi- and the time when the Statute of began against them,
tations error. to run and the omission of those elements Accuracy. being -: Technical law The office of declarations of theory appellate to inform the court as to the law which the case nicety court, expression was tried and ruled required the trial the same is not jury. applied in them as in instructions to a If as to the evidence *3 they they theory, respects show correct it is immaterial whether in some technically incorrect; they proceeded are if show that the trial court but judgment upon wrong theory, constitute error. statutory 11. eighteen Dower in Excess. HOMESTEAD: Where homestead twenty-four square part square rods and of the lot of on house, dwelling five rods was located the hundred and the homestead was worth death, dollars at the time homesteader’s his widow was remaining square entitled to dower in the six vacant rods. It is self-evident lot, and the homestead exceeded her dower of one-third of the entire in where such is fact the widow under the statute does not have dower the excess. Quarantine. Assignment re- 12. DOWER: within Ten Years: Under the No (Sec. 4558, 1889), amending 1887 the Act of vision statute of 1889 R. S. thereof, (Laws 1887, 177) by eliminating provisos p. the widow’s both brought proper proceeding estate extinct unless she dower in real became death; years assignment after of dower within ten her husband’s for the extinct, quarantine al- dower it likewise became is an incident and years enjoying during possession though mansion house аnd the ten she was messauges belonging. thereto and other lands Quarantine. Lengthening quaran- -:-: Time The widow’s 13. bring requires proper pro- her to alter the statute which tine does not years assignment ten after her ceeding death. dower within husband’s for the dower, permitting Quarantine re- the widow to an incident to assigned; possession which she has dower dower of lands in inmain begun assignment are within ten proceedings of dower but unless extinct, death, ex- and with its years her dower becomes after her husband’s quarantine. goes tinguishment her Limitations. Remaindermen: Life Estate: -: -: Homestead: 14. part lifetime widow’s possession which is not of land Adverse homestead, unassigned be- dower has in which she homestead years, ex- for ten and continued death gun her husband’s after 1880, intestate died in The husband title. tinguishes remaindermen’s rods, twenty-four square five leaving worth children, a lot of and without eighteen could not exceed his the statute Under dollars. hundred continued His widow in value. rods, dollars thousand square three possession extra six dwelling remain and to occupy house assigned to her brought proceeding to have dower rods, no square 445 v. Hicks. against brought against taxes the lot was her therein. In 1898 suit for alone, conveyed the land under execution issued and the sheriff sold conveyed purchaser plaintiffs, judgment, and in 1902 the the lot they brought possession suit who entered into for the entire lot when against at law. The died husband’s heirs widow Held, first, eighteen square had a life estate 1912. the widow constituting homestead, of Limitations and as it the Statute rods 1912, begin the remaindermen until her death did not and the possession. to run square eighteen plaintiffs acquired rods title Held, second, that, the widow’s as the homestead exceeded rods, square dower, and if she .did her in the it six no dower she had .extra thereto, quarantine extinct therein, became with her, assigned failure to have dower of her before because plaintiffs brought from suit to oust could have remaindermen possession in square after into time entered rods of said six claiming 1902, 1902, in exclusive remained brought 1921, they deed, have until this suit was said sheriff’s under square.rods, six and as and limitations to said are barred. them remaindermen 1044, Actions, J., 174, p. Juris-Cyc. Corpus C. Section References: 210, Possession, J., 1046, 175, p. 44; n. Adverse 2 C. Section 82. Section n. 32; 94, 95; 218, 129, 285, p. 159, p. 124, 54; n. n. Section p. Section n. 68; 163, New; 331, p. 172, 162, 70; p. n. 297, p. n. Section n. Section Section 1359, Appeal Error, J., 1505, 283, p. 632, p. 3 C. Section n. 6. 82; 2725, 775, 47; 2853, 878, J., p. 52; p. n. Section n. Section C. n. p. 559, 211, Dower, J., 534, 86; 299, p. p. 880, n. 19 C. Section Section n. 99. 32; Estates, 8, J., 76, 302, p. 559, p. 943, 2; 12. 21 C. Section n. n. Section n. 124, 49, Homestеads, 955, p. 975, 93, p. 29 37 n. 50. n. Section Section C. Taxation, 470, 994, 508, 1016, p. p. J., n. Section n. 63. Section Trial, p. 1475, Cye., Cyc., p. p. p. n. n. n. 58, 60, 61; p. n. 68. n. City W. Appeal from Circuit Court of St. Louis. —Hon. Robert Hall, Judge.
Reversed remanded. *4 B. Thompson, King W. & Ford W. for Hays J. W. and James E. appellants.
(1)
Connelly
in question being
Tbe land
the
of
Thomas
death,
at the
of his
his
widow
entitled
a life estate therein.
date
60;
(2)
1875, p.
McMullen,
Laws
v.West
SEDDON, C . This was this Division this court cause ruled opinion granted, however, an A April 13, rehearing filed on was argued subsequently orally and the cause was and submitted rehearing supplemental respective parties. briefs filed After submission, re-assigned prepare and the case was to the writer opinion expressing judgment of this court. the conclusions originаl by my opinion was written learned brother and asso- concurring ciate, Commissioner and received the votes Lindsay, Judge Division, judges the then of three of this Atwood of this court at the time the sitting, he was not a member because original opinion argued and submitted. The originally was cause think, applies law to fairly rightly,, the facts and we states original opinion cor- facts. We are still the conclusion that involved, rectly proper far appeal this as the homestead ruled so part opinion, herein and made this and it is therefore embodied solely ruling confining himself discussion the writer hereof raised'by respective parties upon points rehear- of the additional adopted part and made a original opinion, which ing. In our through C., said: speaking hereof, court, this Lindsay, real possession of certain estate being in plaintiffs, “The provisions of setting up the Section city Louis, brought suit, of St. vesting in for a decree them and asked 1311, Revised Statutes limitation, estate, by provisions under the said said real title to answered, denying generally specifically section. The defendants conformity section, with said made -allegations petition, pleaded that one Thomas and cross-bill by way defense of further simple, August, in fee premises Connelly acquired title to the wife, Mary Connelly, with his thereof, and 1875, took death,, year until his about the as his occupied the same intestate, children, Connelly died Thomas marriage Thomas born of the children were no that there Connelly, entitled Mary as the Connelly; that during her natural life and as a homestead premises occupy said August 22, thereupon occurred death, which nieces, heirs nephews and defendants, thereafter entitled to the deceased, at law of parti- common, and as such entitled as tenants premises real of said prayed defendants tion. The parti- and for a decree profits, monthly rents estate, for the plea denial, followed general a reply tion. *6 op Missouri, Yol. 315. Court by plaintiffs years, plea for more than ten that the cause by up action did not within set defendants accrue next action, twenty-four years within of the nor
before commencement and a renewal action, plea of the before the commencement alleged defendants were barred setting it was that up facts Upon 1311. plaintiffs the trial dis- provisions of Section under the they try case, would petition missed and announced their reply proсeeded, upon the case cross-bill of defendants and the general It plaintiffs, to which defendants filed denial. was conveyed, dispute property shown was Thomas Con- that nelly 28, 1875, the Union National a deed made June executed that Louis, plaintPs Bank of time the admitted St. at that Government, said deed he took had emanated whatever title source of counsel stated that did admit common Afterward, by Bridget Conway plain- title. when the deed made to) controversy (hereinafter tiffs for part referred was lot following evidence, offered in occurred: “ Thompson: object deed, reason, want that We for this ‘Mr. your prop- had no Honor, appears party that this title to that legal in this erty, grantors, equitable; case that admission Connelly, in this was in Thomas and that property the title widow, occupied and that the widow at the of his death he left a time as her and this is made^in property this deed 1903. ‘‘ ‘ was admitted. already : The source of title common The “ possession, on : Our title is based Hiukerbaumer ‘Mr. possession. “ ‘Tpie objection' will be overruled.’ Court: triangular fronting piece ground dispute “The property dwelling Connelly toward Thomas was on Hunt Avenue. The lot, 4478 Hunt Avenue. west numbered This end of wife, Mary, Connelly, а home- with his occupied Thomas Connelly in 1880. evidence shows the death of stead until Connelly children, and that Thomas conclusively had no Connelly dwelling Mary to live in this will, continued left no Shortly August after the death of until her on death Mary Conway, Bridget á Connelly, sister and a James, sons and their two with her Mary Connelly in this daughter with Mary Conway, came live married afterwards, dwelling Mary Conway house. plaintiffs her husband are Falvey, said and she to Patrick by the Collector in a suit judgment was rendered In 1897 a herein. defendant City Louis of St. execution was sold under property; property against taxes Wilhelm became judgment, on said one Nicholas issued v. Hicks. purchaser, and received a sheriff’s deed in August, 1898. On September 6, 1900, quitclaim Wilhelm executed a prop- deed to the erty Bridget Conway, Bridget and in January, 1902, Conway and husband warranty executed a deed twenty-five for the east feet plaintiffs, the lot to the in 1903 executed to a war- ranty deed for an additional strip March, 1918, five feet. *7 Bridget warranty Conway plaintiffs executed to a all deed for the controversy. in property deeds, The introduction of these and of objected by ground deed, the sheriff’s was defendants on the that and property, life estate in the was the plain- suit time for sole defendant in the for taxes. At this counsel ‘announced that their title based on adverse and tiffs purpose showing the that deeds admitted for these adversely, possession. in and claimed title while claimed part east 1902, plaintiffs dwelling “In house on the the erected lot, part deeds being the embraced the theretofore made the Conway and Bridget and her lived there to them others, it to and 1911, about and after that rented collected enlarged They, Conway, Mr. rents with also the the afterward. lot, original dwelling part of the on the west house special general that and Connelly. showed taxes The evidence by Bridget Conway paid plaintiffs, and had been property on the of the deeds mentioned. after the execution that there was a around further showed fence
“The evidence conveyance many antedating years, property for whole of the plaintiffs erected fence and that about plaintiffs, August houses. This suit was filed lot, the two between across Mary Connelly, death of the widow 1921, or nine after of defendants was filed Decem- Connelly. The cross-bill of Thomas instructions the nature parties offered Both 9, 1921. ber by plain- gave declarations asked The court of law. declarations rendered by defendants, and' offered all those tiffs, refused plaintiffs. of thé in favor appeal have their motion dismiss the plaintiffs filed The “I. ground Bule comply with the failure for (cid:127) out in defendants’ brief assignment errors set distinctly allege specifically the errors does Dismissal of Appeal. by the trial court. committed to have been daimecl general first is so assignments of error. The five brief contains Vahldick, in Vahldick announced within rule to be of the declarations assigns the refusal error the second 529, giving assigns defendants, the fifth error of law offered plaintiffs, fourth law offered declarations plaintiffs over defendants’ admitting evidence error in assigns Mo.—29. Vol. against objections. is, Tbe third decree is the law against weight evidence, the law under the wrong assigned party. is for are evidence and errors here substantially new trial. Under the head those the motion for a Fact,’ Law counsel have stated certain 'Points of contentions phases evidence, and cited made under have them various holdings in Kirkland v. support Under the authorities thereof. Schaff, Bixby, Osagera the motion to dismiss is overruled. law, insist here the suit
“II. Counsel is one at trial finding court must be affirmed unless therefore rejection was committed the admission or error. evidence, giving Action refusal instructions. Coun- at Law. gej £or defendants insist that it is suit in equity, and finding that the as such. reviewable The defendants claimed title Connelly, deceased, who, heirs law of Thomas admitted, property had all that had the title to the emanated from the Govern- ment, was, and claimed that as remaindermen, subject their *8 Mary Connelly in property to the life estate a homestead. upon "Wilhelm, Plaintiffs’ claim was based sheriff’s deed to upon adverse and the Statute of Limitations. Essentially, possession, founded on the claim is asserted as taken openly, good and in faith. There is no maintained mention in the But, jury. parties record of of a both waiver asked declarations given. of law It is true that defendants to be asked for a decree in partition in did so in same count which judg- asked possession. ment for Miller, Mo.
“In v. 221 it ivas held Grimes that plaintiff in bring ejectment, suit and in one count another count of the petition partition plaintiffs ask for land. The same raised objection joinder to their in the same count. But prayer partition incident, wholly ivas for a dependent decree finding judgment under the issues of title, tried, issues and as parties Those were the possession. made at Conran, law. v. 213 404; suit onе those issues the Mo. [Lee view 228 Mo. Under that Burton, finding Minor v. 558.] unless is an not to be disturbed there the court absence of sub- finding, or, to sustain such unless stantial error evidence was com- rejection evidence, admission or or in giving mitted law. declarations of or refusal of is no conflict the evidence
“III. There Avife, he, with his November, nor Avasoccupying died in 451 v. Hicks. 1.926] property as Ms homestead at the time of his death. Under the , . law then force his widow became with an es- vested Advprsp late ™ property occupied. f°r -^e [Ailey so Possession. 134 Burnett, 405; Mo. 313; West v. McMullen, Mo. Bushnell v. Loomis, Mary tenant, Mo. Connelly, the life 371.] party sole defendant the judgment taxes rendered sale, and sheriff’s deed conveyed thereunder, executed purchaser no more than the title and interest Con- nelly. Shipley, 106; Ewart, [Milner Graves v. 99 Mo.
Moore Woodruff, Goff, Bradley Wilcox v. Phillips, Taff v. Tallman, Mo. 157.] interests the remaindermen were not affected and sale for taxes. The that Bridget Conway evidence shows claimed the whole title Wilhelm, virtue her deed purchaser taxes, the sale claiming for the perfect tax title was a plaintiffs, title. The on their examination said claimed title under the Conway, deed from Mrs. that she secured at tax the. sale. рlaintiffs The evidence for ownership tended to show acts of property period closely following from a the execution of the deed by Wilhelm; ownership and control and under claim of Bridget Conway, plaintiffs. There was.no evidence that any possessi defendants or any time, them had actual n at or paid up property taxes set claim to the prior the time of the institution of the suit. There no contention made nor claim evidence until after the execution Bridget Conway, September, Wilhelm to deed 1000. There Conway Bridget that from abundant evidence about that time oi exercising usual acts ownership, and were claiming to be the owners. occupancy
“The widow’s
in its
friendly
inception
adverse,
is not
heirs
*9
regarded
continuing
or
and is
as
until disclaimed
hostile acts
so
Riddle,
366;
Kenney,
declarations.
v.
Mo.
Meddis v.
[Chouteau
“In this of heirs were created and the remainder the law, tax seventeen before the operation rendered, twenty years Bridget Conway before obtained and about duty pay accruing was The the taxes from Wilhelm. the deed v. tenant, upon the remaindermen. and not the life [Lewis Barnes, 406; French, 165 Mo. l. c. Hall v. l. c. 438.] 272 Mo. possession to the the Connelly were not entitlеd of Thomas
heirs widow, and until that time could the death the property until Beyond any dispute possession. an action maintained not have long had been created property before the in this two estates Vol. possession began. During possession of period tenant remaindermen, was the so far as third persons French, l. c. concerned. v. Mo. 438.] [Hall against plaintiffs operate
“The adverse as could operate against the re the life estate of the but it did not against Limitations in maindermen so as to set the Statute of motion by the remaindermen, expiration of life estate French, 430; Dyer v. Mary Connelly. 165 Mo. death v. [Hall 280; 81; Edmonds, v. 200 Mo. l. c. Wittler, Mo. DeHatre 280, 295; Ketchum, 192 Mo. Bowen, 279 Graham v. Powell v. Willis Barr, Sipes, Case Cap Egger, 259 S. W. Robinson, Wells 437.] “ course, during may, the life of ‘A\stranger to the title against as tenant life tenaVt, establish an adverse life during estate, cannot accpure thereby life but he against life estate establish an existence vested, interests so as to or reversioners whose are the remaindermen bar of Limitations does not commence their interest the Statute against of the life estate.’ to run the latter until determination J.C. [21 975.] declarations, several all of which were
“The offered defendants They theory rights of defend- disclose defendants’ refused. remaindermen,
ants as are not declarations of arising upon be law stated as facts submitted or to Declaration of Law. found, true, and but are statements of facts assumed as given conclusions based of law for the thereon. declaration plaintiffs case, authorizing recovery, only disposing one necessary noticed, be as follows: one “ if it ‘The court declares the law to be believes from years more period of ten or before commence- evidence that for grantors have been in the plaintiffs their ment of this action hostile, and adverse notorious, continuous, exclusive actual, open, any part or possession of real described cross-bill estate world, posses- all the then thereof, claiming title such thereto therefore, plaintiffs. If the court estate sion vests title to such real Bridget Conway, grantors, their and James finds that physical possession continuously period time for such have thereof, their either themselves or estate, part or real of said rights ownership over the tenants, all the usual and exercised openly absolute title so during time claimed same possession and claim of absolute title notoriously their known, might been to defendants to have presumed known, estate, claim, real title to said then whom under those *10 possessed, has and vested claimed so thereof so much was. v. Hicks. plaintiffs, plaintiffs and the court find in should favor to the extent real estate possessed was and so claimed.’
“By adopting only theory upon this declaration as the law rights which the parties determinable, the court excluded all of a estate, consideration of the evidence as to the existence life rights remaindermen, expiration of defendants time estate, life when of action time could accrue defendants, and when set in the Statute of Limitations was against motion Hypothesizing them. finding plaintiffs, peremptory requiring in character when overlooking questions whether or entirely plaintiffs, property action for accrued to defend-
ants. this declaration the case and was the Since undertook to cover finding for given doing, one so it must be assumed' stated plaintiffs theory therein. urge in their that title briefs
“Counsel independent up anyone even possession is an be set grantor and those under whom he derives some title his own citing title, Macklot v. Dub аnd where there a common source Osborn, reuil, 77 Mo. l. c. Perkins Land Wilcoxon v. v. Irvin, Chapman, 200 Mo. l. c. Waddell & Lumber Co. argue that since defendants They further W. l.
S. c. on knowledge improvements made charged with should be brought the action to detennine title have property, could so, Revised failed do Statutes under Section proposition we cited to Saucier Upon the latter are barred. are Kremer, Detie, l. 640, and c. 393. We 249 S. W. Shaffer v. their applicabil We are unable see have examined cases cited. case. the instant to the facts ity reversed, the cause remanded.” judgment should
“The respondents urge with much seriousness rehearing, IV.' On request given for, and at the (above quoted) law declaration of finding and which authorizes of, respondents, attempt to submit respondents, does not judgment for Inclusion of Defenses. correctly presents plaintiffs’ case, the whole ease, any omission theory of the law ("respondents’) non- case mere theory law of the appellants’ therefrom of requested misdirection, in absence of direction rather than embodying their (appellants) by defendants of law declaration argued Hence, it is the trial theory law the case. plaintiffs’ dеclaration of giving of error committed no court support of this be affirmed. must nisi law and the 577; Mor- Johnson, W. 177 S. cite DeFord respondents contention, Co., v. Transit 451; Williamson Mulhall, gan *11 454 315. [April oe Vol. Drey v. 99 Doyle, 459; Mo. v. Co., Powell 255 Railroad Mo. Sang v. Louis, St. 262 Mo. Railways State ex rel. United Co. v. Reynolds, 257 19;Mo. Wingfield Co., Railroad 347. A careful reading study cases, those however, discloses that, in each and every instance, the jury cause was tried a upon to given by instructions guidance the court for reaching their in a verdict. supposed Jurors are not in to learned and in law given, structions are request either at the parties of the to the cause by the court of motion, acquaint its own law them with the of the applicable Consequently, case to the evidence. in actions jury tried (supposedly before a law), unlearned we have substantially respondents held, (following the cases cited 2 Thompson rule stated in Trials, 2341), on sec. that “mere non- direction, total, ground is partial specific not trial, of new unless instructions, good point evidence, law appropriate requested words, having party, and refused.” In other a asked presenting jury theory no instructions his of the law of the case, cannot convict trial cоurt and demand reversal of error a given go instructions his do not as far adversary because the his they might gone, for, present have his favor as he desired theory jury, then he should re law of the case to have quested an instruction thereon. (as distinguishable that, purely
It is true in law actions from actions) aid equity jury, tried the court without the should, give requested, either court when or refuse instructions law) (commonly in writing or state called declarations the con separately law, the conclusions clusions of facts found pursue Miller, both should not courses. Mo. [Kostuba Robertson, If, ease, Suddarth v. neither course 286.] (because request of a pursued is the trial court absence there for) support general finding and there is substantial evidence court, judgment will trial be reversed Kingsland, appeal. on and cases there [Hill cited.] presumed law, being charged know the However, the court proper Unlike law with its due and administration. actions tried laymen jury presumably law, in law before a unlearned actions, by jury is waived where a trial and the court sits as the facts, presumably requires no respect trier of the court direction Hence, in ing actions, the latter class of the law case. wherein- dispensed court, trial is had jury with and before the declarations purpose jury. than do instructions to of law serve different law, purpose Therefore, that the it has been held declarations of jury, the court tried without is to advise the in law actions theory upon of law which the court nisi tried appellate court Co., Railroad ruled the action. [Baumhoff v. Hicks. Dollarhide v. little Mabary, Consequently, it matters Mo. 197.] whether to non- given the declarations of the court amount law court mis-direction, appellate direction or either case the looks ascertain law, given refused, to the declarations of theory respecting law the trial court the case. Looking given request respondents, to the declaration of law quoted, predicated hereinabove we find that *12 physical respondents possession by property of the real involved ¿Tames all grantors, Bridget Conway, their and excludes consideration of the life to the existence facts evidence as rights as possession Mary appellants estate and of of Connelly’s life remaindermen, expiration Mary the time of the of estate, prem of the time when the action for of of Limita appellants, ises accruеd to and the time when the Statute appellants’ tions to run of action. commenced respondents’ property adverse of the real question of dependent fact, upon law and the above- one of mixed issue is law elements, which were omitted the declaration of mentioned from by this As said hypothesized. been which it should have court 202: “Where the Mabary, court in 125 Mo. l. c. Dollarhide sitting law, like jury questions as a tries of mixed fact give applicable question possession, of adverse it should instructions It by evidence, defining possession.” case made analysis us, the declaration law referred of of apparent theory upon wrong respecting proceeded trial court a to, that Hence, applicable as to the evidence. law of adverse ’ ruled, giving plaintiffs declaration was error. have of as we observation, that we have might passing, We the further make law declarations of again appellants’ refused examined certain of as instruc refused offered and, might well have been while theory law appellants’ a at disclose jury, tions to least The office of declarations rights respecting their as remaindermen. theory law as court tо the appellate being law to inform court, trial the same and ruled was tried upon which the case required not as instructions to law is nicety in declarations Union, App. 70; Hellmuth Royal Fraternal jury. [Zahm law, applied If the App. declarations Benoist, 144 Mo. 695.] theory, it is immaterial whether then evidence, show correct technically Bank incorrect. respects, they are, in some [Citizens’ The refusal the court (Mo. App.) W. Cowart, 931.] S. law, perhaps tech-’ while declarations appellants’ of certain strengthen our conclusion that rather tends proper, nically wrong theory upon proceeded court trial However, applicable to the evidence. law of law, are we declarations of refused appellants’ regard without Vol. Court oe convinced that giving respondents’ the trial court erred in declara- tion, requires judgment. error a reversal of the
V. Since the submission rehearing, point this cause on respondents raised in their supplemental brief that the tract in controversy land contains an area of than more eighteen square rods, Dower: the amount allowed the home stea<^-statute in force and effect at the death of Thomas LfmHatíons1 computation A disputed of the area of the land, assuming the accuracy survey plat correctness and in evidence, thereof approximately the area thereof is discloses twenty-four square rods. Therefore, the excess in amount over and above the approximately homestead allowed the statute six square Connelly’s rods. statute, The homestead time of Thomas (Sec. death 2689,. 1879), R. S. defines the homestead thus: “The every consisting homestead housekeeper family, or head of a (consists) dwelling of a appurtenances, house and land used therewith, in connection exceeding the amount and value herein . ; limited . . having population thousand cities of forty more, square eighteen not include more than shall *13 rods of ground, or exceed total dollars.” the value of three thousand
The old dwelling house, occupied by during his by life and Mary Connelly, thereafter his is located tract, house, west end of the by respondents while the new built the Falvey, According is located in the end east of the tract. to the survey plat evidence, greater the house part of the new built by occupied Falveys about 1902 lies outside and the east of westerly eighteen square rоds, square and within the excess of six rods, TIence, by Mary more or urged respondents less. it that is tenant, having any right the widow and life never occupancy to possession east of the excess end tract, being statutory homestead, respondents’ it outside of her appellant thereof was adverse to the remaindermen as respondents as soon went into and therefore appellants’ having of action accrued at that time their without Connelly. Respondents to await the death of furthermore that, having indisputable by contend title to the excess, tract, approximately which is the east feet of the 24% by thirty also have east feet tract, Bridget Conway conveyed in 1902 to them deeds (under title) gave which claim inasmuch those deeds thirty of title to whole of the east them color feet the tract. Spencer, court, Banc, held, In White v. this en judgment substance, judgment an existent that where there is proper, debtor land in excess of the owns a tract of homestead either Falvey v. Hicks. quantity or value, and theretofore as a part held of the home- tract, stead but the excess dwelling house, burdened with the the lien judgment of the existent attaches to such excess before the levy issuаnce and homestead; of execution or the admeasurement of and, if conveyed by the excess is judgment debtor, grantee J., it tabes burdened with the case, Graves, lien. speaking said, court, for this page 258: “The Homestead Act says, levy however, that no can be made homestead.
word ‘homestead’ as here used means a falling tract land within statutory value, quantity, might add, limitations and we although not herein properly involved. "We have construed the Homestead Act to lien proper, mean no attaches a homestead is, owned, occupied homestead, to the tract and claimed as a statutory within quantity when falls limitations as to But, judgment, say judg- our it will not do that if value. land, no ment debtor owns one thousand acres of lien created judgment as to all the the rendition of the excess over above might sixty selected for the homestead. the hundred give judgments To so construe the statute lien secured levy selected, appraised is made and the and ad- homestead encourage conveyances measured, would be but to fraudulent setting judgment and the actual time of the aside between the lien, Pending [judgment] this . . one who the homestead. . tract, greater from the owner the homеstead buys private sale statute, fixed quantity than the limits takes in either value lien.” surplus subject Growney O’Donnell, this In the later case joinder that, without court, Banc, where en ruled unassigned conveyed of land of which the a tract deed, wife in greater quantity than part, statutory of land conveyance is valid as to the excess statutory homestead, the statute, proper as defined the homestead over above in the excess. course, the wife’s subject, of *14 eases, it would seem last-cited holdings in the two our In view of o Connelly had Mary case, that, in instant logically follow to rods, square six approximately in the excess of proper homestead in the vested the excess fee-simple title to that, therefore, the immediately upon Connelly, Thomas husband, appellant heirs of the therein. dower subject the widow’s death, his to Mary Connelly, the however, appellants insisted, It is all the land occupant possession of widow, the tenant was possession to was she entitled only, for not part not of (it asserted), life, is for proper of the occupancy of she Statutes was endowed 2186, Revised Section under and, under Section husband, of her the lands all 458 of Yol.
Revised Statutes assigned, “until dower be the widow remain enjoy the mansion house of her and the messuages plantation belonging, being thereto to without liable pay rent for Hence, appellants the same.” argue that, dower having assigned Mary excess not been occupied to Connelly, she possessed the whole premises August until her death on 22, 1912, and appellants therefore were not entitled to any part of of .the land until death of Connelly, which occurred within commencement, before of action. this respective parties
Counsel for this action have not us aided support our labor citation authorities in of of their being apparently blandly respective contentions, content to and bald- ly respective go their contentions and let them state that. Con- sequently, necessary, expense we have it at the of found considerable much on our part, time and labor run down the case law and applicable bearing statutes on vexing the troublous and questions blandly apparent so with stated confidence respective counsel. 1879) S. (Sec. 2205, Under statute R. in force and effect at (cid:127) of Mary Connelly, his
the death had the unquestionable assigned, until right, occupy her dower enjoy messuаges the mansion house her husband and the or lands belonging, included, case, thereto instant the excess surplus the lands the deceased husband over and above the statutory Kring, 452; v. 93 Gentry homestead. Mo. v. [Holmes Fitch, 281; 202; Carey 122 v. 125 Gentry, Mo. Melton Mo. v. West. right commonly of the widow is to, Mo. Such referred 146.] quarantine, and right separate is in this State her and distinct statutory homestead, right and, from the widow’s being entirely dower, unaffected incident intervention Linderman, 202 estate. v. Mo. 605; the homestead [Chrisman Smith Phillips, & v. early Land Inv. Mo. Bros. Co. several 579.] quarantine, cases, statute, the widow’s under allowed to many years assigned. run because her dower had not been [See, 633; 74 Mo. v. example: Moore, Brown v. Holmes Kring, 93 Mo. Westmeyer Gallenkamp, 28; 154 Mo. 452; Stafford, Graham v. v. Keeney McVoy, v. Mo. It also held, 42.] cases, doweress, by a number virtue quarantine, claiming those under the heirs of the deceased husband her, long is not adverse to so unassigned, and that dower is the heirs deceased husband premises legal or enforcible have no until assigned, if dower never assigned, or, dower has been Moore, death the widow. Robinson [Brown Kring, Baker, Sherwood Ware, Holmes *15 459 v. Hicks. 105 Mo. Fitch, Melton v. 125 281; Carey West, Mo.
146; Westmeyer
v. Gallenkamp,
It remains, therefore, for us to determine whether the widow’s possessоry right quarantine herein, upon which accrued her hus- band’s death in incident her Quarantine. dower, was for an tenure, indefinite terminable upon assignment of dower, or, in assignment the event dower, here, then (as early death held in cases cited), above or quarantine whether her was affected limited in tenure subsequent legislative enactment.
In 1887, there was limiting enacted an act the time institution of suits for (Laws dower in real 1887, estate. That act 177) p.. provided: “All recovery actions for the in of dower real estate, which shall not be within years commenced ten from and effect, years this after act takes or within ten after the death of the through under whom such de- 'dower is claimed or manded, provided, any shall be forever barred: however, person bring entitled recovery an action for the dower at the legal time this disability act takes effect be bring under such action, person bring such action after time herein years limited and within three disability after such removed: in provided, further, that the limitation this specified act shall not apply deemed to where be case the widow is of, enjoying specified mansion her husband as house 1879, Section Statutes of the State of Missouri of Revised until she shall have been evicted therefrom.” foregoing revising was amended act session by eliminating Assembly saving General clause provisos therein, leaving following amended statute in the two estate, recovery “All for the of dower real actions form: within death commenced not be shall demanded, dower is husband, through or under whom such claimed It has been R. S. barred.” shall forever 1889.] [Sec. by subsequent brought form, revisions down in its amended repeal statutes, and the enactment of a until its new section in lieu 1921, p. in 1921. 119.] thereof . [Laws special statute limitation of 1887 dis-
The effect of the of- Curry, Belfast Investment Co. v. this court cussed said: “'We are not unmindful of the fact that wherein we harmony out of have reached is with' those we conclusion held that court which limitations would not of this prior decisions assignment Fenton, thereof. prior run [John Kring, However, provisions 452.] Holmes relating to dower of limitation enacted special statute force) by the was not considered court when the case (if then *16 oe Vod. any to right last cited was to does not attach decided. The dower is in a particular assigned. it It part of a tract land until died which husband upon an the land to sense encumbrance all good that Legislature may public seized. The have deеmed for outstanding claim unsalable an land should not be rendered such having compel parties time, an indefinite and therefore wished to for years." ten possessory rights to assert them within undivided speaking 12, said, McFarland, 1, we McFarland “It of limitation: special statute purpose effect exhibits, quarantine the widow to to limit the the intention necessary judicial perfect years and such further time as is uncertainty put assignment and also an end to the dower, of her every appears does hangs title in which a deed which which over should, doubt, no of dower. The statute a release not contain evil at which it was for the correction construed reasonably including purpose its construction, evidently aimed, and this superseded, which it as well as the conditions the future all expressed, manifests the it is now intention the words which ’’ Legislature. Scharff, 823, 827, 213 W. the same statute was S. In Edmonds plaintiff and we there said: “The asserts that again under review occupation Limitations did not run on account of the the Statute by the widow after the death of her husband. house mansion rulings court, However, the recent of this and the under . . . statute, right assigned action to have dower terms plain statute, 391, section of the Sec. S. [Quoting the R. is barred. cоntaining origin this section was 4558, R. As the act Sec. S. 1889.] appended to the effect that proviso ally passed disabilities, suffering nor apply persons certain should not act enjoying the widow is any case where the .to of 1899 so amended in the Eevision The act was mansion house. This section to read as above. and leave the proviso, as to omit legislative has commented inten cases recent in two court has announced that there in that revision manifested tion every an bars action for dower it now reads the section doubt quoting exception. [Citing and Belfast Investment case, without . . McFarland, supra.] . These MeFaidand v. Curry, and v.Co. plaintiff.” against the claim of the this contention settle cases Phillips, 289 Mo. Investment Co. Land & In Smith Bros. depends upon right quarantine this State 594, wé said: “In provides 4533, Eevised Statutes provisions Section enjoy in and may remain widow assigned, dower be that “until messuages plantation or husband, mansion house of her pay rent for being liable belonging, without thereto ' assigned, and, right to have dower This is an incident same.’ Ualvey v. Hicks. right when that ceases, quarantine disappears. also itWere otherwise the proceed- failure of.the to institute a doweress ing for recovery of her within thе time limited would have the give effect to of the mansion house and messuages plantation belonging perpetuity.” thereto rulings
Under the cases, laid down this court in the fore-cited as we construe their effect, Mary Connelly, force and the widow Connelly, who was seized of an indefeasible estate life (by 1879) virtue of R. statutory Sec. S.
of her deceased must assignment have demanded an *17 admeasurement of her dower wdthin ten from her husband’s death, failing in which barred; and, her dower was furthermore, her right quarantine (by virtue 2205, 1879), being of Sec. R. S. an dower, incident of disappeared and ceased with her dower.
So far as the record shows, Mary Connelly before us sought never or demanded an admeasurement, setting out, or of either her home- stead or dower in controversy. the tract of land in The Homestead (Sec. Statute 2693, 1879) R. S. in force at the death of Thomas Connelly, authorized probate having jurisdiction court estate of the housekeeper deceased head family, "whenneces- sary, to appoint three to set out such homestead to commissioners person thereto, entitled Section Statutes Revised provided: appointed “The commissioners to set out such home- stead, shall, exists, cases where the also also set- dower, out such shall first homestead, set out such from the residue of the real estate of the deceased, shall set out such dower, but the amount of such dower shall be diminished amount of the homestead; interest of the widow such and if the equal interest of the widow such homestead shall or exceed one- during life, third interest her natural in and all for and the real family housekeeper estate of which or head of a shall have died seized, assigned to such widow.” no dower shall be The section of quoted 1879 last to and the Homestead Statute of referred has been brought by subsequent revisions statutes in the identical down 5859, R. language. S. 1919.] [Sec. foregoing was construed Jordan v. Rudluff, statute provisions, its 129, 135, wherein we said: “Under country fee, leaving lands in
householder died seized widow children, $1500 homestead”to the value would be set without remaining absolutely. If the value of lands added out to her assigned. $4500, would be If the no dower total did not exceed this value of sum, lands to the one-third the value excess exceeded transaction; life. This closes the her for would be set out to estate, including her being a broader dower both her oe Yol. in quantity estate, assignment would amount of itself to dower to that extent.” case, Connelly died seized the instant lаnd which Thomas forty thousand, having
was located than City population in a of more so that not more than he was entitled a homestead therein of eighteen exceeding thousand square rods, three total value controversy seemingly approxi- dollars. The tract of land in contains mately twenty-four square stipulated at trial rods, and it was premises, Connelly in 1880, at the death of Thomas Consequently, proper, $500. value about the homestead out including dwelling house, had been dmeasured .~ad set Mary statute, Connelly, widow, foregoing no dower under the assignable rods, approximately square six the excess of for it is self-evident widow that the indefeasible life interest proper during the homestead exceeded one-third interest her natural life in all real estate of which her husband died seized, quantity as to both value. having with died in we are confronted special
the determination of the effect of the statute of limitations (Sec. statutory 1887 and its amendment revision of 1889) quarantine right It. S. of his enjoy remain the mansion house of her husband messuages belonging (including surplus *18 thereto the excess or proper) of land over and above the homestead until her dower (if any) assigned premises. in be the whole Under the dеcisions special 1887, before the enactment limitation-statute of right quarantine would seem the widow’s existed for an of only upon assignment dower, indefinite of tenure terminable or, assigned, special dower was then death. never her The saving limitation-statute of 1887 contained a clause which all recovery might actions of dower be commenced within ten effect, regardless years from and after said act took of whether the years passage husband ten before the death of the occurred proviso a that "the in act, and also contained limitation this act any specified apply not be deemed to case where the widow shall enjoying is in of and the mansion house of her husband specified 2205, Statutes Section Revised of the State of Mis- 1879, shall have been evicted souri of until she therefrom.” It is in the instant case that undisputed upon the record enjoying the mansion house was her deceased taking time of the effect the statute of at the husband By the was never evicted therefrom. revision that she statute of 1889), saving (Sec. proviso R. S. clause of eliminated, provided and it is that "all 1887 were Act of actions for not recovery estate, in real which shall be commenced Falvey v. Hicks. years within ten from the death of the husband . . . shall be forever question barred.” The with which we are now confronted is whether the away revision statute of 1889 took from the Mary Connelly, a right vested enjoy under the Act her quarantine possessory right premises the entire until dower assigned, or until her death. Under the decisions since the revision statute of 1889 cited, quarantine- right above the widow’s is held to be extinguished with dower, unless an action to recover dower is commenced within period years the limitation pre- ten scribed the statute.
In Cranor v.
District,
School
of debt
any writing
founded on
shall be commenced and sued on
years
within ten
next after the cause
action
shall have accrued
give
was construed to
years
action within ten
after the
passage
although
act,
than
more
had elapsed after
action
brought.
the cause of
accrued
suit
before
Similar in force
Callaway County
Nolley,
effect are
and Seibert
Copp,
Whether Mary Connelly brought should have an action to recover (as required 1889) she was to do the revision statute of years within ten from the husband, death of her or within ten years taking from the effect 'ute, any event, the revision s in of bring she did period 'not within either such action of time and right recovery her for in of action of dower the lands of her deceased statute, husband was barred and with the bar of action extinguishment recovery right of her dower went Connelly quarantine. Mary It follows that had lawful possession surplus approximately square or excess six rods controversy, in the east the tract appellant end of in respondents heirs of her deceased when went into Bridget possession of said excess under their deed from in Conway appellant 1902. The heirs of Thomas have taken pos- could or, square rods, six in event that session the excess of any her, relinquish claiming one under refused ejectment possession, appellants have maintained and evicted could any claiming any quarantine her, her, after her one under time extinguished, prior in which was time the excеss respondents possession excess when went into square approximately six Respondents’ the excess appellants, rods at and hostile of the tract was adverse east end the excess under respondents Falvey having taken Conway having Bridget 1902, and held color of from their deed years than ten thereafter and thereof for more continuous suit, appellants are barred of the instant before the commencement which, according excess, asserting claim or title evidence, feet survey approximately east inches 4% however, have controversy. respondents, neither of the tract any part of paper lawful title to possession nor eighteen square consisting rods west proper, thereon, ruled, dwelling house as we have tract, end not entitled to appellants were reason tenant, Mary the life death of Con- until the proper the homestead of this before commencement than less nelly, action. the cause remanded judgment nisi is therefore reversed with herein ex- views proceedings
for further accordance G., pressed. Lindsay, concurs. by Seddon, C., adopted foregoing opinion
PER CURIAM:—The except judges concur, Graves, All court. opinion J., absent.