246 Mo. 462 | Mo. | 1912
Action by widow for dower and damages for deforcement thereof. From a judgment assigning dower and rejecting her claim for damages, she appeals.
On February 5, 1891, David Moran, seventy years old, with two adopted children, but no lineal heirs, was united in marriage with the plaintiff then a lady of thirty summers. They resided in Andrew county, where the husband was possessed of two farms, one of 500 acres, and the other a smaller tract of 106 acres.
When the funeral was over, it was discovered that Moran had devised all his lands to his adopted children except a life estate in the 106-aere tract.
By an antenuptial contract, Moran, in consideration of marriage, settled upon plaintiff the 106-acre tract, “during her life or widowhood;” and in consideration of rights acquired by that settlement, she agreed to waive all claim to dower and homestead in the real estate of her husband. [See 173 Mo. 211, for copy of contract.]
However, the plaintiff was not at all satisfied with such rights in the 106-aere tract as were given to her by the marriage contract; and during the last twenty years has assiduously sought to enlarge her estate in the realty of her deceased husband. This is her fifth appearance in this court in her efforts to acquire more property than she agreed to accept in full satisfaction of her marriage with Moran. [See 122 Mo. 295; 132 Mo. 73; 151 Mo. 555; 173 Mo. 207.]
On the 27th day of November, 1899, she instituted this action against the adopted son of her husband for dower in the 500-acre tract occupied by him; and also claimed damages for the deforcement of her dower in that tract.
Defendant pleaded the marriage contract as-a bar to plaintiff’s dower; but this court held that said contract was not based on a sufficient consideration, and did not bar the plaintiff’s right to dower. The first appeal in this particular cause resulted in a reversal and remanding of the 'cause for new trial. [Moran v. Stewart, 173 Mo. 207.]
In plaintiff’s reply, she alleges that since tbe death of her husband, she has held tbe 106-acre tract “by virtue of her right of homestead and quarantine.”
On November 12, 1903, both parties, after waiving a jury and admitting “tbe facts set up in tbe pleadings,” submitted tbe case to tbe court. The court found tbe issues in favor of plaintiff, and that she was entitled to dower in tbe 500-acre tract, with damages for tbe detention thereof; also that she was entitled to both dower and homestead in tbe 106-acre tract.
Tbe court then appointed appraisers to view tbe property and set off to plaintiff, first, a sufficient amount of tbe 106-acre tract to equal $1500 in value as her homestead, and also a sufficient amount of tbe remaining lands occupied by tbe plaintiff and defendant to equal one-third of all tbe real estate of tbe deceased, said one-third to include the amount set off as homestead.
At tbe same time tbe court also made an order directing tbe commissioners that in ascertaining tbe value of tbe different tracts of land owned by tbe deceased, they should not consider any permanent im
On February 23, 1904, the commissioners filed tbeir report reciting that they had set off plaintiff’s homestead in the 106-acre tract and also the remainder of said 106-acre tract in fnll of her dower in all of her late husband’s lands.
"When this report was filed, the plaintiff filed objections thereto, alleging among other things that the commissioners had placed a value on both tracts of land as of the date of the death of David Moran; that said lands had greatly increased in value since his death, and that the commissioners should have awarded the plaintiff one-third in value of all of said lands at the date of the assignment of her dower and homestead.
By what we suppose is the bill of exceptions in this cause, it appears that the plaintiff’s objections to the report of the commissioners were overruled by the court while the plaintiff’s attorney was temporarily absent from the court room. "When he returned on the same day and was informed of the action of the court, he announced his desire to introduce in support of said motion numerous files in other suits in which the plaintiff was or had been a party; and also the will of the late David Moran. Upon objection of the defendant, the court refused to allow these documents to be introduced, on the ground that the offer came too late; whereupon plaintiff saved her exceptions.
It does not appear that the plaintiff at any time excepted to the order of the court appointing and directing the commissioners how they should set off the plaintiff’s dower and homestead, nor does it appear anywhere that she excepted to the action of the court in confirming and approving the report of the commissioners.
Thereafter, at the May term, 1908 (four years after the approval of the commissioners’ report), plaintiff moved the court to set aside its order approving the report of said commissioners appointed to set off dower and homestead; which motion was by. the court stricken from the files on the 10th day of November, 1908; and plaintiff excepted.
Thereafter, at the November term, 1908, at the .request of the plaintiff, the cause was redocketed, and the issue of the plaintiff’s right to damages for the detention of her dower in the 500-acre tract was tried before the court sitting as a jury, and a judgment rendered in favor of the defendant, holding that plaintiff was not entitled to any damages; whereupon the plaintiff prosecuted this appeal.
For reversal of the judgment, plaintiff contends.: (1) that the court erred in directing the commissioners to fix the value of the real estate as of the time of the death of David Moran and not allowing them to consider the enhanced value of the property brought about by the improvements made by defendant; (2) that plaintiff was the absolute owner of the 106-acre tract, and the court erred in assigning her dower in that tract; (3) that the defendant was barred at the time of filing his amended answer from having dower or homestead set off to plaintiff in the 106-acre tract; and (4) that the court erred in not awarding her damages for the detention of her dower by defendant.
Other alleged errors of the trial court are complained of; but they are either embraced in the foregoing assignments or found not worthy of attention.
I. The main insistence of the plaintiff is that the court erred in directing the commissioners to ascertain the value of the real estate as of the date of the death of Moran and instructed them not to consider any permanent improvements placed thereon by defendant.
Upon the record, this issue is not properly presented to us for review; first, because plaintiff did not object or except to the action of the court at the November term, 1903, when the commissioners were appointed and directed to disregard the permanent improvements made on the land since the death of Moran; and, second, because no exceptions were saved to the order of the court approving the report of the commissioners. •
The ac ' m of the trial court in finding plaintiff was entitled to dower in both the 106 and the 500-acre tracts, its order appointing commissioners to set off homestead and dower therein, and directing them how to fix the value of said property, was not a final judgment nor any part thereof. It was only a preliminary order of the court leading’ up to a final judgment. [Rannels v. Washington University, 96 Mo. 226, l. c. 231.]
If the court erred in its directions to the commissioners, its attention should have been called to the error by a proper exception at the time such error was committed, so that the same could have been corrected then and there.
Sec. 2028, R. S. 1909, which provides that exceptions may be saved to the “opinion” of the trial court during the progress of trials, does not designate the class or nature of errors which may be preserved for review by bills of exceptions; but it has long been the practice in this State to require exceptions to be preserved to all erroneous rulings and orders of trial
It has been held that the following orders made by trial courts if erroneous and injurious to a litigant, must be excepted to by him when made: orders awarding changes of venue—Gibney v. St. Louis Transit Co., 204 Mo. 704, l. c. 717; orders consolidating suits—Turley v. Barnes, 67 Mo. App. 237, l. c. 240; orders striking out parts of pleadings—Linn County v. Bank, 175 Mo. 539.
If the trial court erred in directing the commissioners to disregard permanent improvements made on the land of Moran and to assign the homestead and dower of plaintiff out of the 106-acre tract, so far as it would go, that error must have been as apparent to plaintiff’s attorney at the time the interlocutory judgment was entered and the order made as when the commissioners filed their report at the succeeding term of court; and no reason being apparent why he failed to except to that interlocutory order when it was made, the objections to the report of the commissioners, made in exact conformity with the order under which they were appointed, comes too late, and cannot be considered on appeal. [Richardson v. Association, 156 Mo. l. c. 413; Windes v. Earp et al., 150 Mo. 600.]
In the trial of civil cases, the same duty rests upon plaintiff’s as defendant’s attorneys to aid the court in every possible way to try the case according to law; and among other duties so imposed is to except to every erroneous or improper act of the trial
It was not necessary for the circuit court to have given the commissioners any written directions in regard to their duties. [Chicago, etc., Railroad Company v. Randolph Townsite Company, 103 Mo. 451, l. c. 468.]
If no directions had been'given to the commissioners and their report had been erroneous under the law and facts, an exception to the order of the court approving this report would have been sufficient to have brought such error here for review; but the abstract does not show that any such exception was saved. An exception was Only saved to the order of the court overruling objections to the report.
The statutes do not require written exceptions to the report of commissioners appointed to assign dower or homestead. [Secs. 374 and 6713, R. S. 1909.]
The trial court may determine the correctness or legality of such report in whatever manner is satisfactory to it. If written exceptions be filed and overruled, that does not injure either party, because the court can overrule the written objections and still reject the report of the commissioners on grounds not mentioned in such objections.
"When the report was approved, it became binding; and then the plaintiff should have excepted to the order approving it. This she failed to do. [Richardson v. Association, 156 Mo. 407. l. c. 411.]
The report of the commissioners appointed to assign plaintiff’s dower was approved by the circuit court on March 24, 1904, and more than four years thereafter, to-wit, on November 20, 1908, the plaintiff apparently having discovered that she had saved no exceptions to the approval of said report filed a mo
The filing of this last named motion and the saving of exceptions to the court’s action in' striking it from the files, did not help the plaintiff. When the trial court commits an- error to which an exception may he properly saved, such exception must he saved promptly. [Harrison v. Bartlett, 51 Mo. 170; City of St. Joseph v. Ensworth, 65 Mo. 628; Bond v. Finley, 74 Mo. App. 22; Richardson v. Association, 156 Mo. 407, l. c. 411.]
II. Plaintiff further insists that the court committed error in finding that dower should he assigned to plaintiff in the 106 acre tract, because plaintiff was the absolute owner of such tract at the time defendant’s amended answer was filed, and that defendant’s right to have dower assigned in that tract was barred by the Statute of Limitations.
The proposition that one occupying the home and plantation of deceased under a widow’s quarantine can by that act acquire an absolute title against the heir or remainderman, is novel,-and wholly’untenable. Under no construction of plaintiff’s pleading could she have been entitled to anything more than a life estate in the 106 acre tract; and the settled rule of law is that possession of one holding a life estate can never become hostile to the remainderman. [Hall v. French, 165 Mo. 430.]
Our attention has not been called to any law which would bar the right of an heir to apply to the circuit court to assign dower to a widow who, as in this case, is occupying lands under the right of quarantine. Through filial consideration and affection, heirs often allow the widowed mother to occupy the whole of their father’s real estate and enjoy the income thereof for an indefinite period. To hold that heirs should be penalized by forfeiting their interest in the property
A delay on the part of the heir or remainderman in bringing suit for the assignment of the widow’s dower while she is in possession, does not bar the action, because the possession by the widow is not hostile to the heir or remainderman. [Fischer v. Siekmann, 125 Mo. 165; Carey v. West, 139 Mo. 146.]
In the instant case, at the time of filing his amended answer the defendant was the owner of the remainder in both the 106 and the 500-acre tracts, subject to the widow’s quarantine, dower and homestead rights; and it was altogether proper on his answer for the court to order plaintiff’s dower in both tracts assigned at the same time. It is always the policy of the law to prevent a multiplicity of suits. The plaintiff seems grieved because she received no part of the-500 acres as dower. Her homestead expressly asserted in her reply had to be set off in the 160-acre tract; and no doubt the court and commissioners thought it would be more to her interest to have her dower assigned out of the remainder of that tract than to give her part of her dower in another tract and allow the defendant to recover possession of a part of the 106 acres.
. In the last brief filed by appellant, she asserts that she is holding the 106 acre tract under the marriage contract, notwithstanding her reply in this cause shows she is holding it under dower and quarantine. She can have no interest whatever under the marriage •contract. She had to repudiate that contract in order to have dower and homestead; and this court having held that the marriage contract was based upon arj, insufficient consideration, it is not valid for any purpose.
III. The further contention of plaintiff that, having found that she was entitled to dower in the 500-
IV; Another contention of plaintiff is that she was not allowed to recover damages for deforcement or detention of her dower. The evidence clearly shows that defendant never at any time deprived her of the possession of any part of the land which was set off to her as dower and homestead; consequently there was no evidence upon which a judgment for damages could be based. When all the provisions of the dower law are read together, it becomes apparent that a judgment for damages for deforcement of dower is not a general judgment, but must be a special judgment against the interest of the heir or other person who has wrongfully deprived the widow of dower in the very land which she has succeeded in having set off to her.
Sec. 389, R. S. 1909, being a part of the article defining the widow’s rights to dower, reads as follows: “In all cases of judgments for damages, or yearly allowance in favor of any widow under the provisions of this article, execution thereof shall be 'awarded only against the estate in which dower shall have been assigned.” See Griffin v. Regan, 79 Mo. 73; and Reineman v. Larkin, 222 Mo. 156, l. c. 166.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
