Orchard v. Wright-Dalton-Bell-Anchor Store Co.

| Mo. | Apr 1, 1915

OPINION.

BOND, J.

(After stating the facts as above.) — On the first appeal of this case, this court decided, among other things, that the leasehold in question was not devised by Saracini to his wife and two children under the terms of his will giving them equal parts of all his “real estate,” since it did not have that character, but was only personal estate, despite the statutes providing that leaseholds of such duration (twenty years or more) should be assigned for dower in the same manner as real estate. [225 Mo. l. c. 456.] The court predicated that conclusion upon the fact that the statute did not alter the essential nature of such leaseholds as personal property, given to them by the common law, and hence they would not pass under a devise confined by its terms to real estate.

Applying this ruling to the title set up by plaiiitiff under the conveyance to him of the leasehold by the widow of the original lessee, and it is evident that it acquired no support from any devise to her by her husband. Appellant concedes this and further that his grantor, Mrs. Saracini, had no title to the leasehold as doweress of the real estate of her husband. But he insists that she and her two children were joint owners as distributees of the leasehold, and that the conveyance to him thereof carried her undivided one-third interest therein, and cites in support of that position, the following section of the statute (R. S. 1909, sec. 349): “When the husband or wife shall die, leaving a child or children or other descendants, the widow or widower shall be entitled absolutely to a share in the personal estate belonging to the husband or wife at the time of his or her death, equal to the share of a child of such deceased husband or wife. ’ ’

Appellant maintains that since the leasehold in question was merely personal property, the widow of Saracini, upon his death, became entitled thereto conjointly with her two children under the statute absolutely, and hence her failure to renounce the will which devised certain real estate to herself and her two children did not deprive her of the rights and interest in the leasehold bestowed by the above quoted statute. This position of appellant is sustained by the following language of Judge Yalliant, speaking for this division :

“Where the law gives a widow absolutely a certain share in her husband’s estate at his death, he cannot deprive her of it by his will, and if in such case the law does not say that she must make within a certain time a formal renouncement of the will she need not do so but may simply ignore it and claim what the law gives her. There are certain sections of the statute relating to the widow’s share in her deceased husband’s estate, as pointed ont in the brief of appellants, that put on her the duty of election, but section 2937 (R. S. 1909, sec. 349) under which this widow is now claiming a share equal to a child’s share, is not one of them; the law gives her that share absolutely and unless she has bargained it away or is estopped to assert it she is entitled to it now.” [Egger v. Eggex, 225 Mo. l. c. 141.]

Accepting this authority, it will be seen that the plaintiff in this action of ejectment has acquired at most only the title of one of the three joint owners of the leasehold. The two children who took one-third each of that asset at the death of their father are neither parties to this suit, nor represented here in any way.

The situation of the case as to the two defendants, the Store Company and Mollie ICnight, is that one of them, Mollie Knight, is the original lessor of a valid lease of the property yet unexpired and is setting up some claim against the explicit terms of her own grant. The other defendant, the Store Company, claims only under a second lease made by Mollie Knight contrary to the terms of her former outstanding lease, which has neither been forfeited nor surrendered. The attitude of these two defendants was fully discussed upon the former appeal. After examining the contention then made that Mollie Knight had reacquired' title to the leasehold from the fact of an alleged sale thereof during the course of administration and a conveyance to her by the purchaser at such sale, the court said that the sale in question was shown by the record to be void and open to collateral attack. [225 Mo. l. c. 461.]

And the court further held that Mollie Knight was shown by the record to have made the second lease to her co-defendant prior to the illegal sale of the leasehold by Saracini’s administrator, and hence it was “evident that this second lease was not made in reliance” upon the administrator’s sale. [225 Mo. l. c. 462.]

From these ruling's on the former appeal, it necessarily follows that neither of the defendants has any legal right or claim to the leasehold sought to be recovered in this action. [225 Mo. l. c. 458.] The learned counsel for respondent admit that under the present record no right or interest could be shown in either defendant other than a bare possession by the ‘ ‘ Store Company” on the day of suit, but insist that the right to possession is legally vested in “strangers” to this action. This contention is correct as to two-thirds of the ownership of the leasehold which descended to the children of Saracini after the closure of the administration of his estate leaving that asset undisposed of. It is not correct as to the present plaintiff, for if the written conveyance to him by the widow was validly executed, he has succeeded to the one-third interest which became vested in her at the same time.

For some reason the present action seemed to have been prosecuted in total disregard of the rights of the two children of Saracini, or their representatives. We think the ends of justice will be subserved by a reversal and remanding of this case to the end that all the owners of the leasehold may be made parties plaintiff. When that is done no difficulty will be experienced in establishing their rights to the leasehold in question. They will not be required to deraign title further than the common ancestor, Mollie Knight, and neither she nor her assignee (the Store Company) will be allowed to defend against the valid conveyance made by her to Antonio Saracini, for “it requires no citation of authority to show that a man cannot question a title given by himself or hold possession of the land in the face of his own deed.” [Steele v. Culver, 158 Mo. l. c. 138.]

The judgment herein is reversed and the cause remanded to be proceeded with in conformity to this opinion.

All concur.