61 Mo. 148 | Mo. | 1875
delivered the opinion of the court.
Plaintiff brought his action of ejectment in the Jasper circuit court to recover the possession of certain lands situated in that county. The cause was taken by change of v.enue to Pettis county, where a trial was had and judgment was rendered in plaintiff’s favor. The action was originally instituted against John D. Thompson. Lucretia E. Thompson (the appellant here) his wife, and Hugh L. and William A., his sons. John D. Thompson made no defense, and the sons answered that they were not in possession, and disclaimed having any interest therein.
Lucretia E. admitted that she was in possession of the premises as the wife of John D. Thompson, but denied any unlawful entry, and denied the right of the plaintiff to recover. As a further defense she set up in her answer that plaintiff claimed title to the premises through a trust deed and sale thereunder, made by her husband, John D., and herself, to one Maxey, as trustee for the plaintiff; that the deed was fraudulent and void as to her; that she was compelled to sign said deed of trust by the coercion and undue influence of her husband, John D. and the plaintiff, and that she never acknowledged the same to have been voluntarily executed by her. She further alleged that the officer before whom the acknowledgment purported to have been taken, never examined her separate and apart from her husband, and that his certificate was false, and fraudulently procured by her husband, John D. and the plaintiff. She then averred that since the commencement of this action she had obtained a decree' of divorce from her husband, and that the court granting the decree found that she was'the innocent and injured party, and that in that suit no alimony was prayed for or allowed, and that her dower in her husband’s lands had never been relinquished by nor assigned to her,
It is entirely unnecessary to examine the minor points that have been pressed upon our attention in the argument, and but two leading questions which run through the case will be noticed. The first is the action of the court in striking out that part of Lucretia E.’s answer which claimed dower in the land, on the ground that she had beeu divorced, notwithstanding that her husband still survived ; and the second is whether the action was in any event maintainable against her.
It is assumed in the argument for the appellant, that the granting of the decree of divorce for the fault of the husband was equivalent to his civil death, and immediately thereafter entitled the wife to an assignment of dower out of his lands, and that the right of possession continued in her till dower was duly set apart. The case of Wood vs. Simmons (20 Mo., 363) is cited as decisive authority upon this point. In that case it was held that upon a sentence of divorce, a wife becomes entitled to all choses in action not previously reduced into possession by the husband, as by survivorship upon the death of the husband. The_ husband and wife during marriage had conveyed the wife’s reversionary interest in certain slaves, and after procuring a divorce, the wife enjoined the assignee from taking possession of them, on the ground that, by survivorship, they belonged to her for the support of herself and children. Mr. Justice Ryland, in delivering the opinion of the court, said : “Here the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband; and the wife must be looked upon as his widow.”
In the case of Browning vs. Headly (2 Rob. Va., 340) the divorce obtained by the wife from the ‘husband by the
A wife divorced from her husband can only have dower in his estate, where it is given by the statute. Three things, viz: marriage, seizin and death of the husband, are requisite to consummate the right of dower. By the common law no woman can have dower in her husband’s lands, unless the coverture continues up to the time of his death. According to the elementary treatises on the subject, the marriage must continue until the husband’s death, and the claimant must
To guard against any hardship in cases of this kind, there should always be a provision for alimony when the wife institutes proceedings for divorce.
The next question is, was ejectment maintainable against the defendant, Lucretia E. Thompson. Her answer alleged that she was in possession of the premises as the wife of her husband, John D., who was also a defendant, and the ease does not show that she was possessed in any other capacity. It is not shown that any act was done by the wife, except that she, in conjunction with her husband, withheld the possession from the plaintiff. The common and ordinary case is exhibited of a husband and wife residing together upon property claimed by another, who, when he brings his action to recover the possession, brings it against both. Hnder such circumstances we are very clear that the action cannot be maintained against the wife, and no personal judgment can be rendered against her. Her possession is simply the possession of the husband. The ease of Meegan vs. Gunsollis (19 Mo., 417), is decisive authority on this question. In that case the plaintiff commenced his action of ejectment against James Gunsollis and Sophia, his wife, to recover possession of land claimed under a deed of trust executed by them. The petition alleged that the plaintiff on a certain day was lawfully entitled to the possession of the land, and that the defendants unlawfully withheld the possession from him. Process was served upon both defendants, and they demurred to the petition. The demur
When the action in this case was commenced, the wife did not hold the possession in any manner or in any capacity which would authorize the plaintiff to make her a defendant, and for this reason the judgment must be reversed and the canse remanded.