Roberts v. Nelson

Black, J.

— 1. This was an action of ejectment. On the trial the death of W. Gr. Roberts, the common *25 source of title, (was admitted. It was also conceded that Aletha was his widow and that no dower had ever been assigned to her. The proof is conclusive that she continued to reside on the home place of the deceased and that the lands in question constituted a part thereof. She had the right to remain in and enjoy the mansion house, messuages and plantation thereto belonging, until dower was assigned to her. R. S., 1855, p. 672, sec. 21. This right can only be terminated by the assignment of dower. Ejectment will lie to enforce her right of possession to such lands and this suit was, therefore, properly brought by her. Brown v. Moore, 74 Mo. 633; Miller v. Talley, 48 Mo. 503; Jones v. Manly, 58 Mo. 559; Stokes v. McAllister, 2 Mo. 163. And she is entitled to the whole of the rents where there is no outstanding lease at the date of the death of her husband. Orrick v. Robbins, 34 Mo. 226.

2. The further question arises whether the suit ■could be revived in the name of the administrator of the widow, she having died pending the suit. The administrator was allowed to recover rents by way of damages down to the death of the widow, but not possession of the lands. This, it is contended, was error. Of course, the lands descended to the heirs, or if the defendant had the title he became entitled to the possession. But the administrator was the proper party to recover the rents and profits, They were assets of the estate. Our statute -with respect to ejectment suits contemplates that damages may be declared for in the same suit and in the same count. It expressly provides that, if the plaintiff prevail, he shall recover, by way of damages, the rents and •profits down the time of assessing the same, or to the time of the expiration of the plaintiff’s title, and that, if the plaintiff’s right to the posession expires after the commencement of the suit and before trial, recovery may be had for the damages. In some states the damages for the ■detention of the property must be sued for in a separate action, or in a separare count in the same suit. The cause *26 of action for the damages does not abate, and the administrator is the proper party to sue therefor. There is no reason why the estate should be driven out of court and the administrator compelled to institute a new suit for the rents and profits. For the purpose of recovering them it was entirely competent to revive the cause in the name of the administrator. It has before been so held in actions of forcible entry and detainer, both as to the plaintiff and defendant. Carlisle Rawlings, 18 Mo. 167; Brewington v. Stephens, Admir, 31 Mo. 38.

3. The defendant relies for title, in part, at least, upon a deed made by the sheriff to Farmer and Caynor, dated October 8, 1862, and a deed from them to him. This sheriff’s deed was based upon certain judgments of the county court, which appear to have been rendered for principal and interest due upon township school bonds. The judgments recite a notice, but not a citation, as provided for in section 29, page 1425, Revised Statutes, 1855. The notice appears to be that contemplated in section 24, which is no citation for judgment at all. For this reason, and because the sale appears to have been been made at the sitting of the county court, and does not appear to have been made during a term of the circuit court, the deed must be held to be void. McClurg v. Dollarhide, 51 Mo. 347. As to the other sheriff’s-deed to defendant, based upon the judgment against Roberts and recovered in 1871, its validity depends upon-the fact whether the sale was made before or after the-death of Roberts. If made before his death, still the widow was entitled to her quarantine and dower, and, until dower was assigned to her, she was entitled to the possession of the property. As to the measure of damages it is enough to say, in addition to what we have already stated, that no instructions were given or refused upon this subject, and hence no such question is before-us for review.

The judgment of the circuit court is affirmed.

All r.oTinnr.