In Banc.
MARSHALL, J.
The following opinion heretofore rendered in Division One is hereby adopted as the opinion of the Court in Banc, with the express understanding, however, that what is herein said shall not preclude the defendants, upon a trial anew, from relying upon and showing that the plaintiff abandoned the premises, or that she is estopped to claim quarantine. Robinson, G. J., and Brace, Gantt, Burgess and Fox, JJ., concur; Valliant, J., dissents.
In Division One.
This is an action by the widow
of Thomas H. Casteel for her quarantine in about three hundred and forty acres of land in Lafayette county. The husband died on December 13, 1891. testate, and making provision in his will for his wife. She renounced the will and elected to take her dower under the statute, and afterwards on May 9, 1899, brought this action for quarantine and another action for dower. The circuit court entered judgment for the defendant, and the plaintiff appealed.
The case made is this: On August 21, 1889, [83]*83Thomas H. Casteel bought a. tract of land of about 323.81 acres, known as the “Maloney” tract. At that time there were two deeds of trust on the land, made by Maloney and wife, one to George M. Catron, curator, dated July 15, 1889, securing a note for $6,150 payable at three years, with eight per cent interest from date, and the other of the same date to Turner Williamson, for $1,588.20. Casteel took the land with these incumbrances on it, and, therefore, he acquired only the equity of redemption in the land; he did not, however, assume the payment of the deeds of trust.
Afterwards on August 30, 1890, Casteel purchased, seventeen acres of land that adjoined the aforesaid land. This last named land was and ever since has been free and clear of incumbrance. Casteel then established his home upon the land so purchased and used the whole of it as one farm. He died on the 13th day of December, 1891, never having paid the two deeds of trust upon the three hundred and twenty-three acres. After renouncing the provisions of the will, the plaintiff remained in possession of the home and plantation for quite a while, and enjoyed all the rents and profits arising therefrom. . The defendants set up in their answer that she abandoned the premises and that she was es-topped to claim quarantine, but the court declared, by the third instruction given for the plaintiff, that the evidence did not support these defenses, and therefore found those issues for the plaintiff. The defendants did not except to this ruling and did not appeal therefrom, so that those issues are not open to review in this court.
The personal estate was not sufficient to pay the debts, and hence, at the August term, .1893, of the pro - bate court the executor procured an order of sale of all the real estate. Under this order the executor on May 29, 1894, sold the seventeen-acre tract to the defendant, Potter, for $545.50, and thereafter, on May 31, 1895, he sold the three-hundred and twenty-three acre tract [84]*84to the defendant Potter, for $10,660. With these funds the executor paid off the two deeds of trust, aggregating at that time, $10,320.07, and the balance of the $10,660, amounting to $339.93, together with the $545.50 ■realized from the sale of the seventeen acres, and.aggregating $884.43, went into the assets of the estate, and was used to pay the debts of the deceased. After these sales the executor put the defendant, Potter, in possession of the land, and thus the matter rested from 1895 to 1899, when this suit for quarantine and the other suit for.dower were instituted.
I.
“By section 7 of Magna Charla the widow was allowed, under a right known as quarantine, to remain in the mansion house forty days- after the death of her husband, during which time her dower was to be assigned, and during her continuance a reasonable support was allowed her out of the estate. ’ ’ [10 Am. and Eng. Ency. Law (2 Ed.), p. 148.]
The statute of Missouri (sec. 2954, R. S. 1899) provides : ‘ ‘ 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 any rent for the same.”
Because of this right to remain in (the term at common law was “tarry in”) the mansion house of her husband until dower is assigned her, it is important to note what the dower rights of a widow are, for if she is not entitled to dower she is not entitled to quarantine. Our statute (R. S. 1899, sec. 2933) is as follows: “Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance, at any time during marriage, to which she shall not have relinquished her right of dower, in the manner .prescribed by law, to hold and enjoy during her natural life,” etc.
[85]*85The term “'estate of inheritance” has an accepted and settled meaning in law. It means an estate that will descend to a man’s heirs by the simple operation of law, and it may be an absolute or fee simple estate, or it may be a limited estate, such as a base fee, or, at common law, a fee tail. Therefore, it does not include an estate for the life of the husband, or other lesser estates. [Cooley’s Blackstone (4 Ed.), *p. 104, et seq.]
Our statute as to dower is almost identical in this respect with the common law. [Cooley’s Blackstone (4 Ed.), p. 129.]
The “estate of inheritance” here referred to need not necessarily be free of incumbrance or lien, for its inheritable character is sufficient to pass the title to the heir subject to the lien or incumbrance, just as it stood in the ancestor.
Until the passage of the dower act in England, dower was not permitted in mortgaged estates. [Scribner on Dower (2 Ed.), ch. 22, p. 463.] But such is not the law in most of the United States. Certainly ever .since 1845 (R. S. 1845, p. 430, sec. 1), dower in mortgaged estates has been permitted in Missouri. [Atkinson v. Stewart, 46 Mo. 510.]
The provisions of our statute now are found in sections 2935 and 2936, Revised Statutes 1899, which are as follows:
“Sec. 2935. If the husband shall have made a •contract for lands, and at the time of his decease the consideration, in whole or in part, shall not have been paid, but after his death the same shall be paid out of the assets of his estate, his widow shall be endowed of the third part of said lands, to hold and enjoy during her natural life, in the same manner as if he had been seized of an estate of inheritance in such lands at any time during the marriage.
“Sec. 2936. If the husband shall have made a contract, subsisting at the time of his death, for real estate, and paid only part of the consideration, and said real estate shall be sold after his death, under the [86]*86order of a judgment of a court, or by virtue of any power in such contract, or of any power or devise in the will of the husband, the widow shall be entitled to hold and enjoy, as dower, during her natural life, the third part of such real estate, as against every person except such as may hold a lien on such real estate for the payment of the purchase money, and those claiming under them.”
Free access — add to your briefcase to read the full text and ask questions with AI
In Banc.
MARSHALL, J.
The following opinion heretofore rendered in Division One is hereby adopted as the opinion of the Court in Banc, with the express understanding, however, that what is herein said shall not preclude the defendants, upon a trial anew, from relying upon and showing that the plaintiff abandoned the premises, or that she is estopped to claim quarantine. Robinson, G. J., and Brace, Gantt, Burgess and Fox, JJ., concur; Valliant, J., dissents.
In Division One.
This is an action by the widow
of Thomas H. Casteel for her quarantine in about three hundred and forty acres of land in Lafayette county. The husband died on December 13, 1891. testate, and making provision in his will for his wife. She renounced the will and elected to take her dower under the statute, and afterwards on May 9, 1899, brought this action for quarantine and another action for dower. The circuit court entered judgment for the defendant, and the plaintiff appealed.
The case made is this: On August 21, 1889, [83]*83Thomas H. Casteel bought a. tract of land of about 323.81 acres, known as the “Maloney” tract. At that time there were two deeds of trust on the land, made by Maloney and wife, one to George M. Catron, curator, dated July 15, 1889, securing a note for $6,150 payable at three years, with eight per cent interest from date, and the other of the same date to Turner Williamson, for $1,588.20. Casteel took the land with these incumbrances on it, and, therefore, he acquired only the equity of redemption in the land; he did not, however, assume the payment of the deeds of trust.
Afterwards on August 30, 1890, Casteel purchased, seventeen acres of land that adjoined the aforesaid land. This last named land was and ever since has been free and clear of incumbrance. Casteel then established his home upon the land so purchased and used the whole of it as one farm. He died on the 13th day of December, 1891, never having paid the two deeds of trust upon the three hundred and twenty-three acres. After renouncing the provisions of the will, the plaintiff remained in possession of the home and plantation for quite a while, and enjoyed all the rents and profits arising therefrom. . The defendants set up in their answer that she abandoned the premises and that she was es-topped to claim quarantine, but the court declared, by the third instruction given for the plaintiff, that the evidence did not support these defenses, and therefore found those issues for the plaintiff. The defendants did not except to this ruling and did not appeal therefrom, so that those issues are not open to review in this court.
The personal estate was not sufficient to pay the debts, and hence, at the August term, .1893, of the pro - bate court the executor procured an order of sale of all the real estate. Under this order the executor on May 29, 1894, sold the seventeen-acre tract to the defendant, Potter, for $545.50, and thereafter, on May 31, 1895, he sold the three-hundred and twenty-three acre tract [84]*84to the defendant Potter, for $10,660. With these funds the executor paid off the two deeds of trust, aggregating at that time, $10,320.07, and the balance of the $10,660, amounting to $339.93, together with the $545.50 ■realized from the sale of the seventeen acres, and.aggregating $884.43, went into the assets of the estate, and was used to pay the debts of the deceased. After these sales the executor put the defendant, Potter, in possession of the land, and thus the matter rested from 1895 to 1899, when this suit for quarantine and the other suit for.dower were instituted.
I.
“By section 7 of Magna Charla the widow was allowed, under a right known as quarantine, to remain in the mansion house forty days- after the death of her husband, during which time her dower was to be assigned, and during her continuance a reasonable support was allowed her out of the estate. ’ ’ [10 Am. and Eng. Ency. Law (2 Ed.), p. 148.]
The statute of Missouri (sec. 2954, R. S. 1899) provides : ‘ ‘ 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 any rent for the same.”
Because of this right to remain in (the term at common law was “tarry in”) the mansion house of her husband until dower is assigned her, it is important to note what the dower rights of a widow are, for if she is not entitled to dower she is not entitled to quarantine. Our statute (R. S. 1899, sec. 2933) is as follows: “Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance, at any time during marriage, to which she shall not have relinquished her right of dower, in the manner .prescribed by law, to hold and enjoy during her natural life,” etc.
[85]*85The term “'estate of inheritance” has an accepted and settled meaning in law. It means an estate that will descend to a man’s heirs by the simple operation of law, and it may be an absolute or fee simple estate, or it may be a limited estate, such as a base fee, or, at common law, a fee tail. Therefore, it does not include an estate for the life of the husband, or other lesser estates. [Cooley’s Blackstone (4 Ed.), *p. 104, et seq.]
Our statute as to dower is almost identical in this respect with the common law. [Cooley’s Blackstone (4 Ed.), p. 129.]
The “estate of inheritance” here referred to need not necessarily be free of incumbrance or lien, for its inheritable character is sufficient to pass the title to the heir subject to the lien or incumbrance, just as it stood in the ancestor.
Until the passage of the dower act in England, dower was not permitted in mortgaged estates. [Scribner on Dower (2 Ed.), ch. 22, p. 463.] But such is not the law in most of the United States. Certainly ever .since 1845 (R. S. 1845, p. 430, sec. 1), dower in mortgaged estates has been permitted in Missouri. [Atkinson v. Stewart, 46 Mo. 510.]
The provisions of our statute now are found in sections 2935 and 2936, Revised Statutes 1899, which are as follows:
“Sec. 2935. If the husband shall have made a •contract for lands, and at the time of his decease the consideration, in whole or in part, shall not have been paid, but after his death the same shall be paid out of the assets of his estate, his widow shall be endowed of the third part of said lands, to hold and enjoy during her natural life, in the same manner as if he had been seized of an estate of inheritance in such lands at any time during the marriage.
“Sec. 2936. If the husband shall have made a contract, subsisting at the time of his death, for real estate, and paid only part of the consideration, and said real estate shall be sold after his death, under the [86]*86order of a judgment of a court, or by virtue of any power in such contract, or of any power or devise in the will of the husband, the widow shall be entitled to hold and enjoy, as dower, during her natural life, the third part of such real estate, as against every person except such as may hold a lien on such real estate for the payment of the purchase money, and those claiming under them.”
The law is settled in this State that if the husband executes a mortgage on his land, in which his wife joins, and dies, leaving the mortgage unpaid, and if the administrator, under an order of court, sells the land and pays off the mortgáge, the widow will be entitled to dower in the land, and the purchaser at the administrator’s sale-is not entitled to be subrogated to the rights of the mortgagee, for the purchaser does not hold under the mortgage, and there is therefore no equitable assignment of the mortgage to him, but the mortgage is extinguished by payment out of assets of the husband’s estate. [Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510; Sweaney v. Mallory, 62 Mo. 485.]
So, too, the husband’s right to curtesy is not cut off where the wife mortgages her lands, and after her death the administrator sells the land and pays off the mortgage. Nor is the purchaser subrogated to the rights of the mortgagee. [Casler v. Gray, 159 Mo. 588.] If the deed from the administrator is defective so that it does not pass the title at the administrator ’ft sale, the purchaser is entitled to be subrogated to the rights of the creditors of the estate. [Carey v. West, 139 Mo. 146.] In this case, however, the executor’s deed was not defective and, hence, this principle does not apply.
But while the defendants do not deny that this is the law where the husband (or wife) executes the mortgage, they contend that it is different where, as here, the husband bought the land subject to a mortgage already on the land.
[87]*87If, however, dower is allowable in land of which, the husband was seized of an estate of inheritance, and if an estate of inheritance means an estate that will descend to the heir by operation of law, it can make no difference whether that estate is unincumbered or subject to a mortgage or other lien. If the mortgage is foreclosed (the wife having joined in it), or if the land is sold to satisfy the lien (created before the marriage, 2 Minor’s Institutes, p. 155) of course dower is cut out. But whether the mortgage is put on the land by the husband or is on the land at the time the husband acquired the land, the result is the same, the husband has only an equity of redemption. In either case, if the husband during his life pays off the mortgage the wife’s inchoate right of dower attaches, or if the husband’s administrator pays off the mortgage by a sale of all the husband’s lands, the widow’s dower immediately attaches. In both cases it was- the husband’s money that paid off the mortgage, and as the purchaser did not acquire title under the mortgage he can not be subrogated to the mortgagee’s rights under the mortgage. [10 Am. and Eng. Ency. Law (2 Ed.), p. 166, and cases cited in note 2.] In such cases the purchaser takes whatever title the administrator could convey, and as the administrator paid off the mortgage, the purchaser took the title the administrator had power to convey, and that then belonged to the husband’s- estate. But the administrator could not convey the wife’s dower rights. The husband himself could not do that. The wife alone could defeat her dower. And in this case the trial court found that she had done nothing that would estop her from setting up her claim. This results in holding that upon this showing, the widow is entitled to dower in the whole three hundred and forty acres. As to the seventeen acres there could be no question as to her right of dower, for it was free of incumbrance, and the trial court evidently overlooked this fact and this part of the land. Being entitled to [88]*88dower the widow was entitled to quarantine in the mansion house and plantation, which here embraced all the land, until dower was assigned to her. This has never been done.
.The judgment of the circuit court denied her this right, and its judgment is therefore reversed and the cause remanded to be proceeded with in accordance herewith. All concur, except Valliant, J.