86 Mo. App. 674 | Mo. Ct. App. | 1901
The appellant, who is the widow of James Eoley, deceased, seeks to have dower assigned to her in sixty acres of land, whereof he died seized. This land was sold under an order of the probate court of Clark county, in which the estate was administered to pay Eoley’s debts, and was bought by the defendant. The widow was administratrix. The defense to the action is that she is estopped to maintain it, because she sold the land as administratrix, without giving notice of or asserting her claim to dower, and as the answer states; “at said sale assured the defendant that she was conveying him a good, clear and satisfactory title to the within mentioned and described land.” The evidence in support of this allegation of the answer, was a conversation between the plaintiff’s attorney, Mr. Berkheimer, who represented her in her capacity as administratrix, and the respondent Boulware, stated to have been in her presence. The only conflict in the evidence is about this conversation, which will be fully set out. Mrs. Eoley, in effect, denied hearing it. Whatever the fact may have been in that regard, the result would not be affected in the view we take of the case.
There was first a public sale of the land, at which the respondent and John Grandstaff were joint bidders, but it was knocked off to one Theodore Montgomery at $450. The sale seems to have been cried for the administratrix, who was •not present, by her agent Dawson. Afterwards Boulware and Grandstaff, who acted together throughout the transactions leading to Boulware’s purchase, concluded that they were willing to pay $500 for the property, and at their instance Dawson had the sale to Montgomery disapproved by the pro
At the conclusion of the evidence, the plaintiff prayed and the court refused a peremptory instruction for a finding in her favor, and the question requiring consideration is, whether this was error; in other words, whether assuming that all the evidence introduced by the respondent was true, it showed conduct on the part of the appellant sufficient to constitute an estoppel to the present action.
It is settled law that a1 dowress, notwithstanding the partiality with which her estate has always been regarded, may be precluded from asserting it by fraudulent practices which have been relied on by a purchaser. 2 Scribner on
It is to be observed that no evidence was adduced tending to prove that Berkheimer was authorized to make representations about the state of the title, much less the widow’s dower,
In Martien v. Norris, 94 Mo. 465, the plaintiff had been executrix of her husband’s will and as such, in conjunction with her co-executor, sold certain land of the deceased husband’s under a testamentary power. She believed at the time of the sale that her dower had been discharged by an estate in jointure, and so believing, both personally and through her agent, represented to the purchaser that the title was good and unquestionable. The land brought a fair price. On her instituting an action to recover dower, it was contended that she was estopped by these facts, but the court held the other . way. One ground of the ruling was that the purchaser Norris, did not rely on the statement made to him, but on his own opinion that the widow had no interest. But the court likewise held that the declaration made to him by the plaintiff to the effect that iCthe title was perfect and unquestionable,” could not have been understood by Norris to refer to the dower interest, but only to the title of the decedent.
Now, Boulware excludes the possibility that he was misled concerning Mrs. Eoley’s dower by Berkheimer’s promise to make him a good title, because he said he never thought of that, but only of some claim by her children, thus showing conclusively that he was asking for, and believed that he was receiving, information about the title of the deceased husband. A case identical in principle with the present one is House v. Fowle, 22 Ore. 303, where the land was sold by the administrator of plaintiff’s deceased husband to the defendant The plaintiff told the defendant before the sale that the title was good and perfect, and gave no intimation that she claimed
In Burke v. Adams, supra, an estoppel was sought to be raised against the plaintiff who was trying to recover certain lands, because he was a member of the family of his uncle at the time when the agent of one De Eorest, under whom defendant Adams claimed, procured a deed from said uncle, purporting to convey the title. The defendant was present, knew a deed was to be drawn, heard the talk about it, afterwards aided his uncle in moving from the premises, and knew that the defendant came into possession. It was urged that this was such acquiescence in the sale by the uncle of the land as his own, as precluded plaintiff from claiming it. But the court held that in the absence of evidence to prove an intention by the plaintiff to induce the defendant to purchase, believing the land belonged to his uncle, he was not barred.
The cases of Hart v. Giles, 67 Mo. 175, and Sweeney v. Malory, 62 Mo. 485, cited by the respondent, in which the widow was denied a recovery, contained facts showing she had expressly consented to the land being sold free from her claim