Thomas v. Mallinckrodt

43 Mo. 58

• Court: Supreme Court of Missouri
• Decided: October 15, 1868
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The evidence of Oapt. Bissell, which the court excluded on the objection of the respondent, was properly ruled out, as it had no tendency to support any issue raised in the cause, and was inadmissible to show the value of the estate in controversy. Property-holders and residents of the neighborhood where land is situated are competent witnesses to fix the price of land in that neighborhood. Generally, the opinions of witnesses are not evidence; but there are exceptions to the rule. The case of the value of property forms one of the admitted exdeptions, and the opinions of Witnesses are admitted as to the value of property. (Robertson v. Knapp, 35 N. Y. 91; Clark v. Baird, 5 Seld. 183 ; Jay v. Hopkins, 5 Denio, 84)

The questions propounded to the witness were not for the purpose of eliciting the real value of the plaintiff’s estate as dowress in the land, but were directed to the point as to what he realized from the use of his property, which was obviously managed in a different manner and under very dissimilar circumstances. The instruction given for the plaintiff, although excepted to, was not included in the defendant’s motion for a new trial as a ground of error, and can hardly be made to avail him in this court. We have examined it, however, and cannot see that it is objectionable. It is to be read in connection with the one given for the defendant, and they are not inconsistent or different in principle.

The instruction for the defendant declared that it was the duty of the jury to find from the evidence before them what was the reasonable net yearly value of the land, without reference to any improvements, and after deducting the taxes, if the same had been reasonably used by the owner; and that it was for the plaintiff to prove the amount of damages she had sustained. This, it seems to me, was a fair and just presentation of the law, and leaves no substantial ground for complaint.

The report of the commissioners appointed to admeasure dower was made at the March term of the court, 1865, but was not approved till the October term, 1867. The plaintiff asked an instruction that she was entitled to damages for deforcement up to the approval of the report in 1867. This the court refused to give, and confined the assessment to the time the report was presented. The refusal was duly excepted to, but, as the judgment was for the plaintiff, no appeal was taken in her behalf; and therefore, if error was committed, no reversal can be had for that cause. But as the counsel on both sides are anxious to obtain the views of the court on the question, as there are other suits pending, I will proceed to state them.

By Gen. Stat. 1865, ch. 130, § 22, it is enacted that when any widow shall be entitled to dower in any real estate, and she be deforced thereof, or cannot have it without suit, she may sue for the same and have damages up to the day she recovers it. Section 30 provides that when any report assigning dower shall he approved, the court shall impanel a jury to assess the damages, and shall render judgment for the damages assessed, if the same have not been done, and award a writ of possession, according to the report of the commissioners, and execution for the damages.

Now, the law intends that damages shall be assessed up to the time she attains her rights and obtains restitution. Till the report of the commissioners is approved, no jury can be impaneled to assess damages ; till then she has no determination or judgment of the court in her favor. At any time before approval the report is liable to be excepted to and set aside; the widow is dispossessed, and the occupant retains control of the premises, enjoying the profits. Suppose that, where the possession was valuable, the defendant should appear in court, on the presentation of the report, and obtain a continuance, and postpone and delay for divers causes any final action for several terms, would there be any justice in depriving the widow of her legal rights, and holding that she was restricted in her recovery to the time the report was filed ? But the law will bear no such construction; till the report is acted upon and becomes final, there can be no assessment of damages, and the damages accrue and date up to that time.

The court misconceived the law, and should have given the instruction; but, for the reason before stated, the judgment can not be reversed. Judgment affirmed.

The other judges concur.