164 Mo. 415 | Mo. | 1901
— This is an appeal from an interlocutory decree appointing commissioners to admeasure and set off the homestead and dower of the plaintiff in the lands of her deceased husband, William E. Smith.
The judgment was entered at the May term, 1898, of the circuit court of Moniteau county.
The action was brought by plaintiff against Arthur Philip Smith, the only son and heir at law of said William E. Smith. During the pendency of the suit said Arthur P. Smith died, and the present defendants, who are his devisees, were substituted in his stead.
Plaintiff in her petition alleged that her said husband, on March 25, 1888, died seized and possessed of the 170.93 acres described in the petition; that in the lifetime of said William E. Smith, he by his deed of trust dated May 16, 1882, (in which plaintiff joined), conveyed to B. E. Hays as trustee, all of said lands, to-secure a promissory note of $700 made by said William E. Smith to George W. Says, dated May 16, 1882, and bearing compound interest at the rate of eight per cent per annum; that at the death of her said husband said note remained unpaid with the interest thereon, and to protect her dower and homestead therein she was compelled to and did
The defendants in their answer averred that Arthur P. Smith in his lifetime, by his duly executed will, devised all of said real estate to defendants as follows: an undivided four-fifths thereof to defendant J. J. Stephens; an undivided one-tenth thereof to Elizabeth Stephens, and an undivided one-tenth to Mary Laura Stephens, They admit that at the time of his death said William E. Smith owed the said $700 note, but they allege it was secured by a deed of trust upon one hundred acres only of said land and not upon all of it; that he paid the interest thereon until his death; they are informed that there was not sufficient personál estate to pay off said note and deed of trust and .that plaintiff, as administratrix, rented all of said land for two years for-.$800, out of which she paid said note and interest; that she paid it as administratrix and not otherwise; that she has ever since continued to rent said land and received and appropriated the rents to her use; that said Arthur P. Smith was a minor without guardian, and trusted plaintiff implicitly and lived a considerable time with her; that plaintiff could have had the joint homestead of herself and said Arthur assigned and any dower she might have had in excess thereof, and could have leased the remainder for the payment of her husband’s debts; that she did not do so and voluntarily paid off said incumbrance thereon and she is not now entitled to have said debt so paid by her made a
To reverse that judgment this appeal is prosecuted.
The statute in force at the time of the death of William E. Smith provided that “until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages or plantation thereto- belonging without-being liable to pay rent for the same.” [R. S. 1879, sec. 2205; R. S. 1835, p. 229, sec. 15.]
In Collins v. Warren, 29 Mo. l. c. 240, Judge Scott, in construing this section, said: “Under this section, a widow may sue to recover her quarantine when ejected, or may defend herself under it against an action of ejectment by the heir or those claiming under him.” Long prior to that decision in Stokes v. McAllister, 2 Mo. 163, it-had been ruled that she might maintain ejectment if ousted of her quarantine. [Miller v. Talley, 48 Mo. 503.]
All of these eases were reviewed and reaffirmed in Gentry v. Gentry, 122 Mo. 202. In this last case it was expressly held that the widow’s right to quarantine and all its incidents and profits is necessarily exclusive and she is entitled to the whole rent as the result of being the undisputed possessor of the whole plantation with the mansion house. And in Graves v. Cochran, 68 Mo. 74, that the widow’s interest as dower or quarantine is not to be diminished by the taxes assessed either in the husband’s lifetime or during her quarantine.
In State tp use of Moore v. White, 61 Mo. 441, the widow was allowed to recover, of the administrator, taxes paid by her to prevent a sale, for the non-payment of said taxes on the lands
In view of this unbroken construction of this statute, it must be held that the plaintiff was entitled in her own right, and exclusively, to the rents and profits of the plantation, and that she took the same under her quarartfmerigfei^and not as administratrix. She never at any time clih*ged/)kerself with the same as administratrix. She then paid off the mortgage debt of her husband with her individual rents. If she did this voluntarily and it was not necessary to save and protect her homestead and dower rights, then she can have no lien for such payment, because the law will not allow one person without authority to pay the debt of another, and charge the amount so paid against the party for whose benefit the payment was made. But the plaintiff invokes a well-settled principle of equity, that one standing in. such a relation to mortgaged premises that his interest can not be adequately protected without paying the same, is not a stranger and will be subrogated to the rights of the mortgagee under such circumstances. As plaintiff’s dower and homestead had not been assigned it was impossible to say whether it would be.admeasured and set off to her in the one hundred acres that was mortgaged or not. The homestead statute secured to her as a homestead a tract not exceeding one hundred and sixty acres, not exceeding $1,500 in value.
Her husband only owned 1(T0 acres absolutely. A court of equity will not condemn her to lose the amount of the mortgage she paid off simply because it did not cpver the whole 170 acres. No possible harm could have arisen to the heir by her redeeming the whole tract from the mortgage. It did not increase his burden at all, and her ownership of it has not been used to oppress him in any way. As was said in Arnold v. Green, 116 N. Y. loc. cit. 572, “While a mere volunteer, with no obligation to pay or interest to protect, is not entitled
In this case there are no other creditors and there was no personal estate. No legal obligation rested on the widow to pay the mortgage debt, but she was entitled to have the land so marshaled as to redeem her homestead and dower from the mortgage by paying her proportionate share of the mortgage debt on the land, as she had her unassigned dower and homestead therein, which she might lose or have it greatly impaired unless she redeemed it. But to redeem she must have paid the mortgagee the whole debt, unless the mortgagee voluntarily permitted her to redeem a part proportioned to her homestead and dower. [Gibson v. Crehore, 5 Pick. 153; McCabe v. Bellows, 7 Gray, 148; Ibid v. Ibid, 66 Amer. Dec. 467.]
This is a proceeding in the nature of an equitable partition. The present defendants stand in the shoes of their devisor, the only heir at law of William E. Smith.
As against the mortgagee in the mortgage of the one hundred acres, plaintiff could have no dower, because she had waived it as to him, unless she redeemed the land by paying the whole debt, but having paid it she is entitled to dower
If in the assignment of her dower and homestead any portion of said one hundred acres is required to make up her dower and homestead, she should be decreed to pay her proportion of said mortgage debt, and her share of said debt will bear the same proportion to the entire debt which said part of her homestead and dower in said one hundred acres bears to the one hundred acres which was mortgaged; and to receive from the defendants the said mortgage debt to the amount of $901.12, which latter sum shall be a lien on the said one hundred acres subject to her dower and homestead, and if a sale is decreed it shall first be repaid to her before paying the balance to the defendants.
If the homestead and dower can be. admeasured and set off in kind and no portion of said one hundred acres is required, then she should not be charged with any portion of said mortgage debt, but she is entitled to have the same refunded to her out of said one hundred acres.
The decree shall direct that she recover the said mortgage debt to the amount of nine hundred and one dollars and seventy-two cents, and the said sum be declared a lien upon said 100 acres. After mature consideration we are of opinion that defendants should not be charged with interest other than the amount paid by her on the seven hundred dollar nóte up to the time she paid it.
We reach this conclusion from a view of all the equities in the case and upon the analogous principle that as to the one hundred acres she should be charged as a mortgagee in possession. The defendants should be allowed a reasonable time in which to pay off said lien and the taxes on said 100 acres; in default thereof a decree of sale to satisfy the same should be awarded. [Chiswell v. Morris, 14 N. J. Eq. 101; McArthur v. Franklin, 16 Ohio St. 193.]
