278 Mo. 1 | Mo. | 1919
Lead Opinion
Plaintiff, Lou McFarland, the widow of Seth McFarland, deceased, instituted this action in the Circuit Court of Nodaway County on February 9, 1916, against the respondents, children by a former wife and heirs at law of Seth McFarland, who died seized of an estate of inheritance in the lands in controversy May 15, 1904. The land embraced about two hundred acres in Nodaway County. The petition, after stating these facts, proceeds as follows,:
“Plaintiff further states that by reason of said marriage, and by .reason of the facts herein recited, upon the death of the said Seth McFarland, she became entitled to dower in the above described land and that dower has not been heretofore assigned her, nor has she at any time relinquished her rights to dower in the manner provided by law, nor has she received any equivalent therefor. Plaintiff says that ever since the death of the said Seth McFarland until the 24th day of July, 1915, she and all of the defendants, as the children of the said Seth McFarland, held and enjoyed said lands as tenants in common, apportioning among them-therein, plaintiff receiving from said rents the selves the rents, issues and profits thereof among themselves according to their respective interests therein, plaintiff receiving from said rents the value of her dower interest in the same; but that on the said 24th day of July, 1915, the defendants denied to plaintiff any further right or interest in said lands and now seek to convert plaintiff’s said dower interest to themselves and now deny plaintiff’s right therein, and seek to wrongfully deforce plaintiff of her dower right in said land and hav^ done so since the said 24th day of July, 1915, to plaintiff’s damage in the sum of three hundrd dollars.
*7 “Plaintiff says that the monthly value of the lands ¿nd profits of her said dower estate is fifty dollars.
“Wherefore, plaintiff prays judgment for three hundred dollars damages for said deforcement, and fifty dollars per month for the monthly rents and profits of her said dower interest from the rendition of judgment, and for the admeasurement and assignment of her dower in' said lands, and for all other and proper relief.”
The defendants answered, pleading, among other things, the following.:
“Further answering these defendants allege that the right of the plaintiff to dower, if any, in the real estate of which their father, Seth McFarland, died seized of an estate of inheritance, is barred by limitation under Section 391, Revised Statutes 1909.”
The plaintiff replied by general denial and pleaded affirmatively as follows:
“For further reply, plaintiff says that at all times after the death of her said husband, in 1904, until the month of July 1915, she, as such widow, and the defendants, as the heirs of her said husband, continued in the possession of said lands, in common, the defendants at all times conceding and recognizing the dower rights of plaintiff, and each year, during the whole of said time, paid to her one-third of the rents of the lands, as for the yearly income of her said dower; and that they at no time denied plaintiff’s said right, nor held or claimed to hold said lands adversely to her, all as is set out in plaintiff’s petition. Plaintiff says that by reason of.the matters herein, and in her petition stated, her dower in said lands is not barred by Section 391, Revised Statutes 1909.
“For further reply, plaintiff says that because of the defendants’ conduct in recognizing and conceding plaintiff’s dower right during the whole period of limitation fixed in said section, as is stated herein and in her petition, the defendants are estopped from now asserting that her right of dower is barred by said Section 391.
*8 “Further replying, plaintiff says that if said Section 391 by its terms bars plaintiff’s right of dower in ten years after the death of her husband, regardless of the fact that she has been in possession of the lands, with the heirs, and her dower right fully recognized, and with no adverse possession claimed against her, the said section is violative of the Constitution of the State of Missouri and is therefore void and of no effect.”
When the cause came on for trial Salena McFarland, of unsound mind, was made a defendant. George P. Wright, an attorney at the bar, was appointed by the court her guardian ad litem and filed an answer which is not set out in the record. The cause was submitted on an agreed statement of facts which, so far as it affects the matters at issue in this appeal, states that plaintiff is the widow of Seth McFarland and the defendants are his children by his wife who died in 1900. He was married to plaintiff in 1902 and died May 15, 1904, without having any children by her.
The land in which plaintiff seeks to have dower assigned was a part of a large tract of which one John McFarland died seized of an estate of inheritance in 1872, leaving his widow, the defendant Salena McFarland, and eight children, among whom were Seth McFarland and J. E.' McFarland, who afterward acquired the interest of the other children, subject to the dower interest in the entire tract of the defendant Salena who at the time of the trial was eighty-three years old. Seth and J. E. afterward partitioned the land between themselves, the former acquiring the entire title of the land in question, subject to the rights, if any, of their mother Salena. A small tract of the land was omitted from the deeds made in this partition, but it is admitted that the equitable title was in Seth at the time of his death, so that the omission is unimportant.
With respect' to the dower of Salena McFarland “the facts are that for a number of years after the death of her husband she lived upon said 314 acres of
With respect to the dower of the plaintiff, the agreed statement is as follows:
“Immediately following the death of the said Seth McFarland the widow and children took possession of said lands in the sense that the children as heirs were all mutually recognized, and through E. H. McFarland, one of the defendants and one of the heirs of Seth McFarland, the land was rented for and in behalf of all in accordance with their respective rights as they believed them to be from year to year. It was known to all of them that the widow had a dower interest therein, which they understood to be a one-third interest for life, and during all the time from the death of the husband in 1904, down to the month of July, 1915, all of*10 the heirs fully recognized this dower right of the widow, neither the widow nor any of the heirs knowing that there was a dower Statute of Limitations. They paid to her each and every year one third of the net proceeds of the rents of the land, and divided the other two-thirds among the children in equal shares. None of them lived upon or occupied the land at any time, but during all the time kept it rented as above stated. The heirs at no time prior to 1915 ever denied plaintiff’s dower right and never at any time held the land, or claimed to hold it, adversely to her rights as doweress.
“On July 24, 1915, the defendants, through their attorneys, notified plaintiff, in writing, that her- right of dower in said lands was barred by the Statute of Limitations, and from that date they have denied to her any interest in the lands and have claimed to hold it adversely to her, and have collected the rents for the year 1915, amounting to seven hundred and twenty-five dollars and have not paid to her any part of the same.
“Plaintiff filed this suit, praying for the assignment of dower, on the 9th day of February, 1916, more than ten years after the death of her husband. The lands remain unsold and unconveyed since the death of the husband, and there is no question involved because of the rights of any purchaser. The sole question is as between the widow and the heirs, is her right of dower barred by the Statutes of Limitations, under the above facts.”
Upon these facts the court held that both plaintiff and defendant Salena McFarland are barred by the provisions of Section 391, Revised Statutes 1909, by reason of the fact that no action for the recovery of dower wras commenced by the plaintiff within ten years from the death of her husband on May 15, 1904, and that no action for the recovery of dower was brought by the defendant Salena McFarland within ten years from the death of her husband in 1872, and so adjudged, and that they take nothing by reason thereof; and also judged the costs against the plaintiff.
The statute which we must construe in its application to plaintiff’s suit provides: “All actions for the recovery of dower in real estate, which shall not he commenced within ten years from the death of the husband, through or under whom such dower is claimed or demanded, shall be forever barred.”
This special Statute of Limitations was enacted in 1887 in the following form:
‘ ‘ Section 1. All actions for the recovery of dower in real estate, which shall not he commenced within ten years from and after this act takes effect, or within two years after the death of the death of the husband, through or under whom such dower is claimed or demanded, shall, he- forever barred: provided, however, that if any person entitled to bring an action for the recovery of dower at the time this act takes effect he under -legal disability to bring such action, such person may bring such action after the time herein limited and within three years after such disability is removed; provided, further, that the limitation in this act specified shall not he deemed to apply in any case where the widow is in possession of, and enjoying the mansion house of her husband, as specified in Section 2'205, Revised Statutes of the State of Missouri of 1879, until she shall have been evicted therefrom.”
In 1889, it was amended by striking out both provisos and the words “within two years from and after
We said in Robinson v. Ware, 94 Mo. l. c. 683: “It is sometimes said that an unassigned dower is a chose in action, but upon the death of the husband, the inchoate interest becomes consummated, and her right to demand and enter upon the enjoyment of that interest commences. [1 Scrib. on Dower, 618.] Call it what we may, it is an interest in real estate. ’ ’ When plaintiff’s husband died her interest, theretofore inchoate, became a right to demand the thing itself. If it was not givn her she had the right to sue for its delivery into her possession. If it was delivered it is unnecessary to say that no right of action existed,
“Dower may he assigned by parol. The widow being entitled by common right, nothing is required but to ascertain her share; and when that is accomplished by the assignment, and she has entered, the freehold vests in her ' without livery of seisin or writing. And it is true, not only when the dower is assigned in the manner prescribed by statute, but also where a different mode of assignment is adopted by agreement; as where a rent issuing out of the lands, or an undivided third part is allotted to the- widow.” [2 Scribner on Dower (2 Ed.), 73.] The same is the doctrine of this court. [Johns v. Fenton, 88 Mo. 64, l. c. 68.] In that case the cause was remanded for the purpose of trying the question whether dower had been assigned by parol.
Our statute of ddwer carries plainly written upon its face the theory that no judicial process is necessary to establish the rights of the widow as doweress, unless those rights are withheld by the heir of those claiming under him in possession of the lands. The whole statutory structure rests upon the presumption that the parties in interest may and will voluntarily adjust their rights in that relation without the intervention of the courts. It authorizes suit to be instituted under certain conditions which imply failure to adjust the matter fairly by voluntary action. The first of these is that she be deforced of her right. This means in the colloquial as well as legal sense the wrongful withholding. The next condition precedent is that she cannot have it without suit. This would seem to require that she should first use some effort to obtain her right without judicial assistance. The next condition is that the dower has been unfairly assigned to her. This is intended to authorize her to reject any proposition of the heir which she deems unfair. The next is that it has not been assigned within two years from the death of her husband. This is evidently to con
Investment Company v. Curry, supra, was decided by this court on the theory we have stated. In that case there had been no attempt to assign the widow’s dower, or to make any adjustment between her and the heirs, or in any way to segregate or identify her interest. The rent of the entire property, which was insufficient in amount, was turned over to her by the husband’s administrator for six years after his death, after which it was held adversely to her, the entire rent being paid to the heirs for a period of fifteen years before the bringing of the suit. We held that when the rent was withheld from the widow by the heirs, the tenancy in common, which under our statute always results from the joint possession of two or more owners under distinct titles, ceased, the widow’s es
Having held that the parol agreement between the plaintiff and defendant heirs set out in the agreed statement constituted a valid assignment of her dower, it follows that no right of action accrued to her under the terms of Section 372 until the disaffirmance of said agreement and the exclusion of the plaintiff from her joint possession thereunder in 1915. We think that it also logically follows that the special limitation of ten years from the death of the husband contained in Section 391 does not apply. We cannot charge the Legislature with the absurd intention to bar causes of action which do not accrue until after the period of limitation has expired. Section 391, it will be observed, purports to bar all actions for the recovery of dower whether they be brought under the dower statute, the statute relating to partition, which expressly authorizes them, or in ejectment. Its terms include alike all classes of actions for the recovery of land held by that title, which would hang upon a slender, thread were it interpreted literally, without regard to its purpose; a thread which might be cut or broken by any disseizor.
In Chrisman v. Linderman, 202 Mo. 1. c. 614, this court, after quoting from Coke upon Littleton with approval that “a maxim is a proposition to be of all men confessed and granted without proof, argument, or discourse,” referred approvingly to certain legal maxims on the subject of dower as follows: “The law favors dower; it is a reward of chastity, therefore it is to be preserved.” [Coke, Litt. 31a.] Again: “In doubt the response is in favor of dower, liberty, innocence, of the possessor, of the debtor and of the de
In this case, as we have seen, no action would lie by the plaintiff to recover her dower while the contract by which she was receiving it to her satisfaction was in existence. A case of estoppel by contract and the conduct of the parties thereon is presented in its simplest form. The plaintiff had a cause of action for her dower. By this arrangement she received in possession the thing itself. The defendants could not take it from her without returning the consideration she had surrendered therefor, that is to say, the right to sue. This is accomplished by estoppel. This same question was determined in Dry Goods Co. v. Goss, 65 Mo. App. 55. In that case the defendants had agreed to settle the claim in connection with another which it' claimed to hold against the plaintiff as a counterclaim, when it should be liquidated and the title of defendants thereto ascertained. To wait for this settlement the plaintiff postponed bringing her suit until after the period of limitation had expired. No fraud or misrepresentation entered into the case. It was held that defendants
The judgment of the circuit court is reversed and the cause remanded for further proceedings in accordance with the foregoing opinion.
The foregoing opinion by Brown,
C., is adopted as the opinion of the court.
Concurrence Opinion
(concurring.) — My views of this case can be shortly expressed. To my mind Section 391,