Rogers v. Marsh

Norton, J. This is an action of ejectment to recover the possession of eighty acres of land situated in Gentry [68] county. The answer is a general denial, with a special defense setting up title in defendants. Both parties claim title through one N. Thomas Rogers. The evidence adduced on the trial tended to establish the following facts : That said N. Thomas Rogers, in 1866, acquired title to the land in question, by deed duly recorded at that time; that he lived upon the same as a homestead with his family, consisting of his wife and ten minor children, till his death, which occurred in the year 1868; that he left a widow and ten children, who are the plaintiffs in this suit; that the land, at the time of Rogers’ death, was worth $1,000; that shortly after Rogers’ death his widow, believing it unsafe for her to live alone on the land, went to her father’s. The evidence also tended to show that on the 8th day of March, 1869, Mrs. Rogers sold her dower interest in the premises to one Sylvester Marsh, for which Marsh gave his note for $300, upon which Mrs. Rogers afterward sued, asking that the debt be declared a lien ; that she obtained judgment on the note, which was adjudged to be a lien on the interest sold by her, and that under this judgment the land was sold and bought by one Levi Long, who conveyed the same after his purchase to Mrs. Rogers. The evidence also showed that the administrator of the estate of said N. Thomas Rogers, deceased, by virtue of an order of the probate court of Gentry county directing the sale of the land in controversy for the payment of debts, sold the same on the 7th day of June, 1869, to said Sylvester Marsh, and executed to him a deed therefor on the 28th day of July, 1870; that the title thus acquired by Marsh had by various mesne conveyances passed to defendants Elijah Marrs and George M. Philips. On this state of facts the court held that plaintiffs were entitled to the laud as a homestead, and rendered judgment in their favor, from which defendants have appealed, and the sole question presented is, as to the correctness of this ruling. [69] 1. homestead : widow’s title: rights of children, [68] We think it is clear that under the law in force in 1868, relating to homesteads, at the time of said Rogers’ [69] death, he being then seized in fee of the land . . ° m question, the fee vested in his widow, the minor children of Rogers being entitled to the enjoyment of the estate with her till they attained their majority. 1 Wag. Stat., § 5, chap. 68. This has been expressly decided in the cases of Skouten v. Wood, 57 Mo. 380, and Gragg v. Gragg, 65 Mo. 343. 2 — : vSstsJ? widow and cmlaron, without he-when- It is insisted by counsel that the estate in the homestead did not vest in the widow and children because it had not been set apart by commissioners ap- . 1 J x pointed for that purpose. This position is not maintainable, for the reason that the homestead only consisted of eighty acres of land of the value of $1,000 ; and it not being in excess either in quantity or value of what the law allowed as a homestead, no necessity existed for the appointment of commissioners, especially so as it does not appear that Rogers owned any other land. The statute only requires the appointment of commissioners for such purpose when it is necessary that it should be done. Parks v. Reilly, 5 Allen (Mass.) 77; Vogler v. Montgomery, 54 Mo. 577. 3- - — r: .effeot °f administrator’s right°*n burden*of Proof- It is also urged by counsel that the deed executed by the administrator of Rogers’ estate to said Marsh in pursuance of an order of the probate court to 1 se-U rea* ©state in question for the payinent of debts passed the title to Marsh free from the homestead rights of plaintiffs. We cannot agree to the correctness of this position. The homestead of Rogers was not subject to sale in his lifetime for the payment of debts, unless they had been contracted by him before the filing of the deed under which he claimed. Neither was it subject to sale by an order of the county court after his death, except for the payment of such debts as may have been contracted prior to the time the homestead right attached. If the land was in fact sold to pay such debts, the burden of showing it rested upon the defendants, who claimed under the sale, and as there was no evidence in70 traduced by them tending even to show that fact, the homestead right of plaintiffs in this suit was not affected thereby. Howe v. McGivern, 25 Wis. 525. 4. estoppel. It is also insisted that Mrs. Rogers is estopped from asserting a claim to the homestead by reason of the sale of her dower interest to Marsh, as well as by the administrator’s deed. We are at a loss to perceive how the doctrine of estoppel can be invoked and made applicable to the facts in the case. If any interest passed to Marsh by reason of the sale of the dower, whatever it was became reinvested in her by virtue of the sale made under the judgment rendered against Marsh on his note for the purchase money, and as it does not appear that Marsh in his purchase at the administrator’s sale was influenced to make it by anything either done or said by Mrs. Rogers, no element of estoppel exists. 5 suit by next plaintiffípíeaiu ing- It is also claimed that as the answer denied each material allegation of the petition, and as no evidence was offered to show the appointment of the next friend for the two of the plaintiffs who are minors, the judgment should be reversed. This is virtually an objection that the proper parties are not made plaintiffs, and such objection;, if not made either by demurrer or answer, is waived under the statute and cannot be made in the motion in arrest. The answer should have set this matter up, and it not having been done, the objection now made cannot be considered. Judgment affirmed, in which all concur.