Jodd v. St. Louis, Iron Mountain & Southern Railway Co.

259 Mo. 239 | Mo. | 1914

ROY, C.

This is a suit for the recovery of dower in certain real estate in St. Louis, and was begun in the year 1910.

The petition alleges the marriage of plaintiff with Michael Jodd in 1848, and that said Michael Jodd was seized of the land in his lifetime; that he died in 1879, and that defendant entered the land in 1907 and was in such possession at the institution of the suit and wrongfully deforced plaintiff of her dower. There was a prayer for the admeasurement of her dower, for damages and for monthly rents and costs. There was a demurrer to the petition on the grounds that it stated no cause of action and that plaintiff’s action was barred by section 391, Eevised Statutes 1909. The demurrer was sustained. The plaintiff declined to further plead, and judgment went against her, from which she has appealed.

Assignment Limitations. At common law, after the death of the husband and prior to the admeasurement of dower, the widow had no estate in the land of which her husband died seized, but merely a right to have her dower assigned. The Statute of Limitations, prior to 1887 did not apply to such action for assignment of dower. By the act of March 22, 1887 (Laws 1887, p. 177) it was required that such action should be brought within ten years after the act took effect or within ten years after the death of the husband. As plaintiff’s husband died in 1879, the plaintiff’s right of action for assignment of dower was, by that statute, barred in 1897, ten years after the statute went into effect. By the Eevised Statutes of 1889, section 4558, now section 391, Eevised Statutes 1909, the Act of 1887 was so amended as to require the action for admeasurement of dower to be brought within ten years after the death of the husband. If it be contended that the latter statute is void as to this plaintiff in not giving her time after the amendment to institute her suit, it may be answered that if the section as it now stands is invalid as to her, it leaves the law of 1887 in full force (State v. Thomas, 138 Mo. 95), and by that law she is barred.

The judgment is affirmed.

Williams, G., concurs.

PEE CUEIAM. — The foregoing opinion of Eoy, C., is adopted as the opinion of the court.

All of the judges concur, except Faris, J., not sitting.