Scanland v. Walters

BAUL AND, J. This is a proceeding under Section 347, Revised Statutes 1919, for the assignment of dower. It was instituted in the Circuit Court of Balls County by Anna Estelle.Scanland, widow of Charles B. Scanland, deceased, and Beuben P. Boy. Harriett Walters and the collateral heirs of Charles B. Scanland were made parties • defendant. The petition alleged in substance that in 1901 one J. Edward Walters was the owner of a certain tract of land (described by metes and bounds) in Balls County, Missouri, subject to the dower and homestead interest therein of his mother, the defendant Harriett Walters; that afterward the said J. Edward Walters died intestate, and in the course of the administration of his estate, and under and by virtue of an order of the Probate Court of Balls County wherein said administration was pending, all the right, title and interest of said J. Edward Walters in and to said land was sold and conveyed by his administrator to the said Charles B. Scanland and the plaintiff, Beuben F. Boy, *417 who thereupon became the owners of said land as tenants in common, subject to the said homestead and dower interest of Harriett Walters; and that thereafter said Charles B. Scanland died intestate and, upon the election of his widow, she became invested with an undivided one-half of the interest in the land of which her husband died seized, the remaining one-half descending to his collateral heirs. It further alleged that the dower and homestead interest of the defendant, Harriett Walters, in said land, had not been admeasured, assigned or set off to her. The prayer was for such an assignment. - Defendant Harriett Walters filed a separate answer. In this she denied that either the plaintiffs or her co-defendants had any interest whatever in the land described in the petition. She averred that she had the full equitable title thereto, because the land was paid for with her money upon its original purchase by her husband, George Walters, the father of said J. Edward. She further averred that the administrator’s deed upon which plaintiffs based their claim of title was void because of certain alleged jurisdictional defects in the proceeding in the probate court which led up to and culminated in the execution of the deed, and because of certain alleged fraudulent acts and conduct on the part of the administrator in connection therewith. All of these matters were set forth in detail. The pleading concluded as follows: “This defendant says that said administrator’s deed constitutes a cloud on her title and on the title of those acquiring any interest by inheritance from J. Edward Walters, if he owned any interest at the time of his death. “Wherefore, this defendant prays the court to cancel and hold for naught such administrator’s deed and to grant this defendant such other and further relief as the evidence may show she is entitled to, and she further prays for ./general relief. ” *418 J. Edward Walters left surviving him a widow, Etta Walters, but no descendants. On her application she was made a party defendant and filed a separate answer. In this she denied that the plaintiffs had any interest in the land in controversy. She averred on the contrary that the administrator’s deed under which they claimed was void, and upon the same grounds as those set forth in the separate answer of the defendant Harriett Walters. She further asserted ownership of an undivided one-half of the interest which her husband owned in the "land at the time of his death, and charged that the administrator’s deed was a cloud upon her title. She asked for affirmative relief as follows: “Wherefore, this defendant prays the court . . . to cancel and hold for naught such administrator’s deed and to grant this defendant such other and further relief as the evidence may show she is entitled to, and to adjudicate and confirm to her her undivided one-half interest in said real estate, subject to such interest as Harriett Walters had therein as the widow of George W. Walters, deceased, and she further prays for general relief.” The affirmative matters pleaded in the answers were put in issue by replies. After hearing the evidence the court made its findings and rendered judgment. The findings seem to have been stated in writing. They were set out .in extenso and consisted of conclusions of both law and fact, with the reasoning employed by the court in arriving at them.. In the concluding part of the statement they were summarized in this language: “The court therefore finds the issues for plaintiffs and against the defendants.” Immediately* following this was the judgment : “It is therefore considered, ordered and adjudged by the court that the defendant, Harriett Walters, is entitled to dower, for and during her natural life, of a one-third part of the lands in said petition. . . . described. . . . *419 “It is further ordered that A. F. Smith, E. J. Cristopher, and-Baymiller, three competent persons, he, and they áre hereby, appointed commissioners herein to assign and admeasure said dower of said Harriett Walters, and said commissioners shall, before entering upon the discharge of their duties, take an oath or affirmation, honestly and impartially to execute the trust imposed on them respectively; and it is further ordered that said commissioners or a majority of them shall proceed to the said lands and by actual admeasurement ascertain and set off the dower of said Harriett Walters, according to this judgment of the court, and said commissioners shall make a full report of their proceedings, with a plat and boundary of the lands so assigned by them as dower, to this court at the next term thereof, and this cause is continued to said next term.” From such judgment Harriett Walters and Etta Walters were granted an appeal. After the appeal was lodged in this court defendant Harriett Walters died testate. Thereafter her executor and the one beneficiary under her will entered their voluntary appearance here, as did also Etta Walters as grantee in a deed conveying to her all of the interest in the land claimed by the said Harriett Walters, and the cause was revived in their names. At the threshold of the case we are confronted with the question of whether the judgment rendered by the trial court is one from which an appeal lies. The opinion of the court embodying its findings of fact and conclusions of law has not been set out at length because it constitutes no part of the judgment. [33 C. J. 1052.] The judgment is simply that Harriett Walters is entitled to dower. It is manifest that such judgment does not dispose of all the issues raised by the pleadings. The principal issue was tendered by the answers of the defendants Harriett Walters and Etta Walters, and that *420 was whether the administrator’s deed to Scanland and Roy was void. With respect to this the judgment is silent. Nor does it impliedly dispose of that issue. It is entirely consistent with the contention of Etta Walters, that Harriett Walters, as the widow of George Walters, had a dower and homestead interest in the land in question, and that upon the death of J. Edward Walters, the sole heir of George, a one-half • interest in the land, subject to such dower and homestead, accrued to her as the widow of J. Edward and the remaining half descended to Harriett as his heir. Stated another way,- the judgment does not dispose of the issues tendered by the crossbills. Nor does it dispose of all the parties to the record. The claim of the defendant Etta Walters is entirely ignored. The trial court no doubt intended to enter final judgment disposing of all the issues upon the coming in of the report of the commissioners appointed to admeasure the dower. As the judgment actually rendered was purely interlocutory in character an appeal did not lie from it. [Strickler v. Tracy, 66 Mo. 465.] Upon the death of Harriett Walters her homestead and dower, if such were her interests in the land, terminated. She was in possession up to the time of her death, consequently there were no damages to be assessed. In other words the action, in so far as it had for its purpose the assignment of dower, abated upon her death. Notwithstanding, the cause of action pleaded in the crossbills persists. But there is no judgment with respect to it to be either affirmed or reversed. The appeal was prematurely taken and must therefore be dismissed. It is so ordered. Graves, G. J., Walker, White, James T. Blair and David E. Blair, JJ., concur-