176 Mo. 200 | Mo. | 1903
This is an action of ejectment in statutory form to secure possession of the north half of lot three, range “A,” in the city of Cape Girardeau, Missouri, known as the John Albert homestead.
The suit was originally begun in the Cape Girardeau Court of Common Pleas, against the defendant Nancy R. Kenney, the tenant in possession. After-wards, H. H. Albert, the landlord of the defendant Kenney, was, on his own application, made a party defendant, and the venue changed to the Cape Girardeau Circuit Court, where the cause was tried.by the court without a jury, resulting in a judgment for the plaintiff, from, which defendants have appealed to this court. The petition is in the usual form, and the answer a general denial.
The record shows that John Albert died testate, in Cape Girardeau county, Missouri, in August, 1881, leaving surviving him his widow, Terresa Albert, and the following children, to-wit: Anna, William, Robert, Clement, Jules, and the defendant II. H. Albert. That John Albert at the time of his death was seized of the land in suit and occupied it as his homestead. ' Both parties claim through him as the common source of title. By the last will of John Albert, which was duly probated in that county, Linus Sanford was appointed executor. After giving to each of his children the sum of one dollar, the will provides: “To my wife, Terresa Albert, I give and bequeath all the balance of my property of every kind, whether real or personal, after the payment of my debts.” Sanford qualified and proceeded to administer on the estate. In 1897, Sanford, as such executor, filed his petition in the Cape Girardeau Court of Common Pleas, a court possessing original probate jurisdiction, setting forth the fact that the personal property was insufficient to pay the debts of
‘‘ 1. The court declares the law to be that if Terresa Albert took the real estate in controversy under the will of John Albert, and the will devised the property to her subject to the payment of his debts, then she took the real estate in controversy cum on ere, and her heirs are estopped from denying that the real estate is subject to sale for the payment of said debts of said John Albert, deceased.
“2. The court declares the law to be that if the children of John and Terresa Albert accepted the pro*206 ceeds of the sale of the. real estate made by the executor of John Albert, knowing it to be so, on the allowance to the estate of Terresa Albert, then it was a ratification of said sale, and they are estopped now from contesting said sale or the conveyance made by the administrator by virtue of said sale.
‘ ‘ 3. The court declares the law to be that the property in controversy was used and occupied by John Albert as a homestead in his lifetime, and was so used at the time of his death, and at his death his widow took a homestead interest and that as a homesteader her occupancy and possession of said premises were not adverse to the heirs or purchasers at administration sale, nor did the statute of limitations run against them; nor daring the time she occupied said premises as a homesteader could she enlarge her estate from a homestead, or life estate, by claim of adverse possession.”
The defendants asked the. court to give the follow- . ing declarations of law numbered 1, 2, 3, and 4:
“1. The court declares the law to be that under the evidence in this cause, plaintiff is not entitled to recover, and the finding and judgment of the court should be for defendants.
“2. The court declares the law to be that if the court shall find from the evidence that defendant, TI. H. Albert, and those under whom he claims have held the property in controversy for a period of more than ten years prior to the commencement of the proceedings in the estate of John Albert, by the executor, to have the land sold for the payment of debts of said John Albert, and that said holding of said property has been open, notorious and adverse to all the world, said occupants claiming title thereto, then the finding and judgment should be for defendants.
“3. The court declares the law to be that the circuit court of Cape Girardeau county had no jurisdiction to order or adjudge the sale of the real estate in controversy, and that said order, judgment of sale and*207 the deed made thereunder to plaintiff was and is void, and plaintiff acquired no title thereunder in or to thereat estate in controversy, and the finding should he for defendants.
“4. The court declares the law to he that the Fidelity Trust and Safety Vault Company could nor become the purchaser of the property in suit, nor take, nor hold, the legal title thereto; and the court further declares the law to be that plaintiff herein could not become the purchaser of said property nor acquire the title thereto for the use or benefit of said Fidelity Trust and Safety Vault Company, and that the deed to plaintiff is wholly void and vests no title in plaintiff, and the finding and verdict should be for the defendants.”
The court gave defendants’ declaration numbered 2, but refused those numbered 1, 3 and 4.
The defendants complain of the action of the court in respect to the giving and refusing of declarations asked.
The objection urged against plaintiff’s first declaration is that it is unsupported by evidence. This objection is obviously based upon a misapprehension of the facts of the case. The record shows that the lot in question was sold for the payment of debts. This instruction announced a correct proposition of law and is predicated upon facts in .testimony and was properly given.
Plaintiff’s second declaration of law given, although not as accurately framed as it might have been, is in harmony with the principles of law dominating the case. The defendant, IT. H. Albert, in receiving his distributive share arising from the proceeds of the sale of the land hv the executor (as did also his brothers and sisters, through whose deeds he now claims title to the property), is clearly estopped from asserting that title, as against the title conveyed by the administrator’s deed. The declaration shows the thought in the mind
No error is perceived in the action of the court in giving plaintiff’s third declaration. It is firmly settled in this State that the widow’s possession and occupancy of the homestead is, in its inception, perfectly friendly and not adverse to the heirs of the deceased husband or their assigns, and will be regarded as continuing so until disclaimed by hostile acts or declarations. [Chouteau v. Riddle, 110 Mo. 366; Hickman v. Link, 97 Mo. 482.]
We are unable to find anything in the criticism of the declarations of law given in behalf of plaintiff to indicate that the case has been tried upon' a wrong theory, or that an improper judgment has been produced on account of them.
The next assignment of error relates to the refused declarations of law requested by defendant. His firsc declaration of law asked was in the nature of a demurrer to the evidence and was properly refused. The testimony amply justified a finding for the plaintiff.
There was also no error in'refusing defendant’s declaration numbered 3. This declaration was predicated upon the theory that the order of the Cape Girardeau Court of Common Pleas, transferring the case to the circuit court, did not have the effect of conferring jurisdiction on that court to order the sale of the real estate in question as it did in that proceeding. This position, we think, can not be maintained. While it is true the record does not show the antecedent steps leading up to the order certifying the case to the circuit court, yet it very clearly appears that an order was duly made by the Cape Girardeau Court of Common. Pleas certifying the cause to the circuit court, whicn under section 1760, Revised Statutes 1899, the Cape Girardeau Court of Common Pleas was authorized to do, and this too, when the judge is disqualified of his
The'fourth declaration asked by defendant was properly denied. There is nothing in sections 1024-5-6, Revised Statutes 1899, to which, we are referred by appellant as his authority for asking declaration of law numbered 4, that was denied by the trial court, that can in any way be said to prohibit a foreign corporation, such as the Fidelity Trust Safe Vault Company, that, in the course of business in its home State, has become the assignee or holder in trust of a claim against a citizen of this State, the right to come into this State and pursue every remedy and resort to every means that a citizen of this State might do to collect or secure the benefit of that claim. The section of the statute-above referred to only applies to those corporations who have or desire to become established here as “resident foreign corporations,” and does not apply to foreign corporations not established in this State, and a discussion of those sections and the requirements thereof will serve no good purpose here. The declaration was properly denied by the trial court.
The defendant further assails the judgment rendered herein, for the reason, as he now asserts, that it appears in the deed from the executor to respondent, under which he claims to own the lot in controversy, that the notice of sale of the property was not published for the requisite period of time. This question was not raised in the trial court, hut is made here, for the first-time, on this appeal. No objection was made in the trial
No error prejudicial to defendant appearing, the judgment of the trial court will be affirmed.