103 Mo. 368 | Mo. | 1890
This is a most unseemly contest between a son and son-in-law of an old lady, proved to have been eighty-nine years old at the time of the trial in the circuit court, in regard to her interest in the
In that year (1871),'these parties, James Miller, John B, Miller and his wife and Mary J. Miller made an ex parte application by petition to the court of common pleas of Clark county, in which county the property was situated, for the partition of these lands, in which petition it was alleged that the widow, Mary J. Miller, had a dower interest of one-third of the lands for her life, that John B. Miller and his wife owned five-eighths, and James Miller three-eighths of the lands, subject to the dower interest of the widow. A decree of partition was entered according to the allegations of this petition and commissioners were appointed to divide the lands, according to the decree. The commissioners qualified, and about the time they were to proceed to make the partition James Miller and John B. Miller, the former
The commissioners met at the mansion house, and James, John B. and the widow were there together, and the arrangement between James and John B., as set out above, was made known to the widow and she assented to it. There is some discrepancy as to what the widow knew about her rights in the land at that time. James says that Caldwell, one of the commissioners, an old friend of the family, and one in whom the widow confided, informed her that she could take a child’s part or dower, while John B. says he (Caldwell) informed her that she had a homestead in the' lands in fee or dower, but advised her that it was best for her to take a dower interest; for no one could deprive her of that, while she might be induced to sell her fee estate ; and she then said she would take the dower interest. Thereupon the commissioners set off to James the seventy-one acres in section 18, and the twenty acres in section 23; to John B. fifty-four acres in the southeast part of the land in section 18 and the forty acres in section 5, and to the widow thirty-five acres in the southwest corner of the land in section 18. The tracts set off to each in section 18 were all described by metes and bounds.
About the time of John B.’s moving to Kansas, the widow applied to the probate court of Clark county to have her homestead in these lands set off to her, and forty acres were set off to her by commissioners appointed by that court. The report of the commissioners was approved in the summer of 1886, and in September, 1886, the widow conveyed this homestead tract by warranty deed to Eliza Miller, the wife of Alexander Miller, for the expressed consideration of $100. The record does not show that anyone was made a party to the proceeding in the probate court, in 1886, to set off the homestead, or that anyone interested in the estate was notified of it in any way.
Alexander Miller brought this action in ejectment against defendant Sehnebly who was the tenant of John B. Miller ; the latter was, on his own morion, made a party defendant, and answered setting uj> said partition proceeding and the agreement of James and himself
The case was tried by the court. No instructions were asked or given, and the court found the issues for the defendants, and gave judgment against plaintiff for costs, and he has appealed to this court.
There being no instructions given or refused, and no finding of facts, we are not informed as to the theory upon which the court below decided the case. But no matter upon what theory it was decided, the judgment was for the right party, for plaintiff had no title to the property in dispute upon which an ejectment can be maintained.
I. The proceeding in the probate court of Clark county in 1886 was utterly void, for the reason that no notice of such proceeding was given to the parties interested in the homestead property. It is claimed by appellant that by section 2693, Revised Statutes, 1879, the probate court had jurisdiction to appoint commissioners to set off homesteads. Granted. The clause of that section which confers this j nrisdiction is as follows: ‘ ‘ But all the right, title and interest of the deceased
The statute nowhere prescribing the method of procedure in setting out a homestead to the widow and minor children, the court must determine what that method must be, giving the statute that construction, which makes it conform to the legislative will, as far as that will can be ascertained. Probate courts have power to appoint commissioners to set off homesteads to widows and children in certain contingencies. There is no question about that. It is not necessary for us to decide in this case whether the words in the section quoted, “the probate court having jurisdiction of the estate of the deceased housekeeper or head of a family,” limit the jurisdiction of that court to the time of the pendency of the administration and do not extend it after final settlement, or, if they do so limit it, whether the administrator is a necessary party to the proceeding, and must have notice; for we are satisfied, in a case like the one here, where the tract of land, out of which the homestead must be carved, has been divided and allotted to
When it is proposed to take a man’s property he must have “his day in court.” He may not be able to defeat the claim, but he has a right to be heard. To transfer his land to another without notice to him would be depriving him of his property “without due process of law.” Here it clearly and unequivocally appears that the' deceased owned and lived on one hundred and sixty acres of land, which after his death was divided into three parts, seventy-one acres being set off to James Miller, thirty-five to the widow as her dower and fifty-four to John B. Miller. James has long since sold his interest to an innocent purchaser. John B. built barns, etc., at an expense of $700 or $800 on the thirty-five acres set apart to the widow under the belief that he not only owned the fifty-four acres, but also the fee in the thirty-five acres.
Final settlement of the estate of the decedent is made in February, 1S72. This condition of things continues for fourteen or fifteen years, and then the widow goes into the probate court, apparently without notice to anyone, and certainly without notice to any of the owners of this land, and has her homestead set out, talcing it all from John B. Miller'1 s part of the land. This rendered the proceeding coram non judice and utterly void. Cloud v. The Inhabitants of Pierce City, 86 Mo. 357.
II. It may be claimed that, if the homestead has not been assigned, the case ought to be sent back to the circuit court of Clark county with directions to have it set off under section 5443, Revised Statutes, 1889, and then to give judgment accordingly. Plaintiff has no right to this disposition of the case for two reasons :
Having come to the conclusion that the judgment of the trial court ought to be affirmed for the reasons given, we deem it unnecessary to express, nor do we express, any opinion as to the effect upon the widow’s homestead of the partition proceedings in 1871 and the agreement claimed to have been made by those interested in the property at that time. It is enough for us to decide, and we do decide, that this plaintiff has not shown himself entitled to the possession of the property in dispute, and for that reason the judgment of the trial court is affirmed.