34 Mo. 13 | Mo. | 1863
delivered the opinion of "the court.
1. The deeds of the heirs of Gabriel Cerré to the legal representatives of Easton passed the title of those heirs to such persons as were by any means the representatives of Easton in the land, in the same manner and with the same estates, which they would have held if Easton had been the owner of that title before any conveyance was made of his interest in the land. Martin Thomas, being the assignee of Easton, conveyed to Scott and Rule such interest as he could convey, and they and their assigns took under the deed from Oerré’s heirs the benefit thereof to the extent of their representation of Easton: and if Mrs. Thomas did not relinquish her dower in the land, she was a representative of Easton to that extent, and as such took the benefit of the deed from Cerré’s heirs. This view of the subject makes it unnecessary to consider the question as to the perfection of the Spanish grant to Gabriel Cerré, the authority of his executors to convey the land, the validity of the patent to Easton, and the estoppel of the defendants to deny the title of Martin Thomas.
2. The deed of Martin Thomas and wife to Scott and Rule,
3. Martin Thomas having conveyed the land in 1830, his widow’s rights must be determined by the act of 1825, which was then in force. (11 Mo. 205.) By that law, the widow was not entitled to dower “ until all just debts due, or to be due, by her husband shall have been paid.” If the land had been sold under execution against Thomas, or under any other proper proceeding, (during his life or after his death,) for the payment of debts, such sale would have barred the widow’s dower. (Mount v. Vallé, 19 Mo. 622.) But the mere facts that Thomas died owing just debts, and that he owed just debts at the time when he made the deed to Scott and Rule, cannot be set up by defendant, who does not claim to be a creditor of Thomas, as a bar to the plaintiff’s dower, especially when it appears by the defendant’s allegations that there is other property covered up by conveyances in the names of the plaintiff and the children of Thomas, which may be subjected to the payment of those debts. That the widow’s dower is postponed to the payment of debts is true ; but if a creditor never seeks payment of his debts, a third person cannot set up that debt as a bar to her dower. The meaning of the law is, that, among claimants of rights against the estate of a deceased husband, creditors claiming payment of their just debts are to be preferred to the widow claiming dower.
4. If, during the life of the husband, his land has been alienated, and if, when his widow seeks the assignment of her dower, the land is held in several parcels by different persons, her dower shall be assigned in each parcel separately. It is neither her duty to demand it, nor her right to have it in one parcel, in disregard of the divisions made of it by her husband’s alienees.
Judgment affirmed.
