author: WALKER, P. J.

text:
    MARTHA J. GIVENS, Appellant, v. EDWARD MARBUT.
    Division Two,
    June 23, 1914.
    1. CONVEYANCE: Delivery: Husband to Wife. The fact that, after the husband signed, acknowledged and delivered to bis wife a deed conveying farm land to her, be continued to exercise a dominion over it bearing all the indications of ownership, does not destroy the unequivocal fact of actual manual delivery. The marital relation continuing in amity and both occupying the farm as husband and wife, his control over the property in cultivating the soil and harvesting and marketing the crops was natural.
    2. -: -:--: Intention. Nor does the fact that the husband’s intention was to avoid the payment of a possible judgment he feared might be rendered against him on a bond, destroy the effect of a consummated conveyance to the wife, since if the deed was valid for that purpose it was valid for all purposes. Nor does the fact that after her death he undertook to devise the land to his children, for the conveyance being complete it is immaterial how he thereafter regarded or construed it.
    3. -:--: -: Not Recorded. Nor does the fact that a voluntary deed from the husband to his wife, actually delivered, was not recorded, affect the integrity of her title.
    Appeal from Barry Circuit Court.- — Eon. Carr McNatt, Judge.
    Affirmed.

      Mayhew, Safer & Gardner for appellant.
    To operate as a complete and effectual conveyance of land, the delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. Hall v. Hall, 107 Mo. 107; Standiford v. Standiford, 97 Mo. 238; Huey v. Huey, 65 Mo. 689; Taylor v. Davis, 72 Mo. 291; 2 G-reenleaf Ev., sec. 297; Tyler v. Hall, 106 M'o. 313. Whether there was a delivery in this case was a question of intention to be inferred from the relation of the parties, their conduct and declarations and all the facts and circumstances in evidence. Tyler v. Hall, 106 Mo. 314; Powell^v. Banks, 146 Mo. 620; Mudd v. Dillon, 166 Mo. 110. Where the issue is one of law on the question of intention as to whether or not the deed which is the matter in issue and is the basis for the action, was delivered, and there was evidence tending to support the trial court’s finding, the appellate court will interfere when it appears that the issue was lost sight of at the trial .or was not tried as it should have been. McNear v. Williamson, 166 Mo. 358. Delivery by the grantor to the grantee with the intention to pass the title and acceptance by the grantee with intent to take the title, are absolutely essential in the execution of a deed. Siebel v. Higgman, 216 Mo. 121; McNear v. Williamson, 166 Mo. 358. In such cases, it should appear from all the surrounding facts and circumstances and acts of the grantor as well as the grantee, that the grantor parted with all dominion and control over the instrument intending it to take effect and pass the title as a present transfer. This intention may be manifested by act's or by words or by both words and acts. Sneathen v. Sneathen, 104 Mo. 209; Standiford v. Standiford, 97 Mo. 231; Burke v. Adams, 85 Mo. 506; 2 Tiedeman on Beal Property, sec. 814. Such intention, however elusive and difficult to seek out, is of the essence of delivery. Delivery is not determined by any fixed and arbitrary rule but must be worked out with reference to all the facts in the case. By virtue of the will haying been recorded and defendant taking title thereunder and plaintiff having no knowledge of the deed defendant is estopped to claim under the deed. B. S. 1909, secs. 566 and 2811. The grantor knows more about the process of his own mind than anyone else does and his acts indicate what his intentions were in regard to the delivery. Chambers v. Chambers, 227 Mo. 262; Terry v. Glover, 235 Mo. 545. Intention is necessary to the delivery of a deed and must exist in the mind of the parties, evidenced by words or acts. This intention is to be gathered from the conduct of the parties, particularly of the grantor, and from the surrounding circumstances. Webber v. Christen, 121 111. 91;' Hill v. Nichols, 80 Me. 209. Delivery depends on the grantor’s intention. Coin v. Coin, 24 S. C. 597; Pain v. Smith, 14' Ore. 82; Stevens v. Castel, 63 Mich. Ill; Dwindell v. Bliss, 58 Yt. 352.

      J. 8. Davis for respondent.
    (1) The execution of a deed before witnesses will be a fact from which delivery may be presumed. Tiedeman on Real Property, sec. 813; Moore v. Hasleton, 9 Allen, 106; Howe v. Howe, 99 Mass. 98; Currie v. Donald, 2 Wash. (Ya.) 58. (2) It is presumed that a deed is delivered when it is found in the possession of the person to whom it is made. Creen v. Yarnall, 6 Mo. 326; Carnes v. Stiles, 14 Pet. 322; Ward v. Lewis, 4 Pick. 520; Rogers v. Carey, 47 Mo. 232. The law presumes that a delivery of a deed to the grantee personally is done with the intention of passing the title. Tiedeman on Real Property, sec. 814; Scott v. Scott, 95 Mo. 300; Pitts v. Sheriff, 108 Mo. 115. There is direct evidence in this case that the deed from Nathan T. Marbut to Malinda J. Marbut was actually delivered to her by the grantor. The uncontradicted evidence clearly put the deed in Mrs. Marbut’s possession; this is sufficient to show delivery. Inman v. Swearingen, 198 111. 437; Harshbarger v. Carroll, 163 111. 636; Allen v. DeCroodt, 105 Mo. 442; 5 Am. & Eng. Ency. Law (1 Ed.), 447; Burke v. Adams, 80 Mo. 511; Standiford v. Standiford, 97 Mo. 231. . (3) Whether a deed has been delivered or not is a question of fact to be determined from the evidence; and in this case the trial court found that Nathan T. Marbut made, executed and delivered the deed to the land in question to his then wife, Malinda J. Marbut; there was evidence to sustain that finding, and it is binding on this court. Webb v. Webb, 87 Mo. 543; Handlan v. Mc-Manus, 100 Mo. 124; Renney v. Williams, 89 Mo. 145; Crane v. Timberlake, 81 Mo. 431; Wilson v. Craig, 175 Mo. 362. Where a jury is waived, and the cause is tried by the court, its finding has the conelusiveness of a verdict of a jury. Conrad v. Belt’s Admr., 22 Mo. 166; Hurlbut v. .TenInns, 22 Mo. App. 575; Schroeder v. Mason, 25 Mo. App. 194'; Butler Co. v. Bank, 143 Mo. 23; Kirton v. Bull, 168 Mo. 633. (4) If a deed is once delivered, no subsequent act of the grantor can impair the validity of the conveyance. The title is then in the grantee, and it cannot be recovered from him except in one of the legal and formal ways recognized by the law for acquiring property.. Tiedeman on Eeal Property, sec. 812; Parsons v. Parsons, 45 Mo. 268; 13 Cyc. 372, sub. 6. (5) This deed was not found among the papers of Nathan T. Marbut. There is not a word of evidence in this entire record that he ever had it in his possession after he delivered it to his wife at McDowell at the time he executed it. The presumption is that it continued in her possession. Clements v. Hays, 76 Ala. 280; Cray v. Finch, 23 Conn. 495, 513; Bob-son v. Eawlings, 79 Ca. 354; Choisser v. People, 140 111. 211; Janssen v. Stone, 60 Mo. App. 402.
   WALKER, P. J.

Plaintiff brought suit in the circuit court of Barry county, for the assignment of dower in the following described real estate in said county, to-wit: The north half of the southwest quarter of section 31, township 25, range 26.

Upon a trial the court found the issues in favor of defendant, from which finding and decree plaintiff appeals.

Plaintiff married Nathan T. Marbut in 1896. They lived together a short time and in 1901 she brought suit against him for divorce, and same was granted. At the time of Nathan T. Marbut’s marriage to plaintiff he was an elderly widower living in Barry county. In February, 1892, during the lifetime of his first wife, Malinda J. Marbut, he conveyed to her by warranty deed, for a nominal consideration, the land above described. About three years after this transfer Malinda J. Marbut died. During her lifetime and subsequently thereto her husband continued in possession of the land, and exercised the usual dominion over it indicative of ownership. Upon his death in 1910, he devised the land to the defendant.

Upon a review of the facts as preserved in the transcript, much of which is irrelevant, we find that the material question in controversy is as to the delivery of the deed from Nathan T. Marbut to his wife Malinda J. Marbut. The importance of the determination of this question renders it proper to set out in their own words the testimony of the witnesses relative thereto.

W. D. Griffith, a witness for defendant, testified as follows: “My name is W. D. Griffith. My home is down close to Carney. My business is farming. I was born and raised in this county. Marion P. Griffith was my father. He died eight or nine years ago. He was a notary public at McDowell on the 29th day of October, 1892. I was present when Nathan T. Mar-but executed a deed before my father to Malinda J. Marbut at McDowell. Myself, my wife, Mr. Marbut and his wife, my father and brother were present. My brother is dead. He witnessed the deed. He died seven years ago. I am familiar with my brother’s handwriting. ’ ’

Witness was handed a deed dated February 29, 1892, being the deed from Nathan T. Marbut to Malinda J. Marbut, relative to which witness further testified: “That deed is in my brother’s handwriting. I saw him fill out the deed for my father. I do not remember how he prepared it, whether he drew it from another deed or not. I remember he made a mistake some way in the deed, I do not remember who made the change and erasures, whether it was my brother or my father. My father first discovered the mistake. I think this was done before Nathan T. Mar-but signed the deed. My father acknowledged the deed and turned it over to Mr. Marbut and Mr. Marbut turned it over to his wife. They were sitting in the south room of the dwelling house. My father was sitting in the middle of the room between the bed and fireplace. I think I saw Nathan T. Marbut sign the deed. I do not know whether I am familiar with his signature or not. ” Counsel for defendant: “Q. Who had the deed just before your father had it? A. My brother, J. J. Griffith. He turned it over to my father. My father turned it over to Mr. Marbut and he turned it over to his wife. When my father got through with the deeds he handed them to Mr. Marbut and Mrs. Marbut was sitting down and he gave them to his wife. She put them in a small satchel. That is the deed I held in my hand that she put in the satchel. The name J. J. Griffith there in handwriting, is my brother’s.”

V. H. Marbut, a witness for defendant, testified as follows: “My name is V. H. Marbut. I live in the north part of Barry county. Nathan T. Marbut is an uncle of mine. I am a cousin of Edward Marbut, the defendant. I remember my uncle, Nathan T. Marbut, going to, Mr. Griffith at McDowell to make some instruments of writing. I was there. That was during the lifetime of Malinda J. Marbut. I was present when the deed was made. I saw the deed filled out. I was one of the witnesses to the deed. It was being executed before Mr. Griffith. He is now dead. This signature to this instrument is mine. I was acquainted with Nathan T. Marbut’s handwriting. I think this is his handwriting. Mr. J. J. Griffith did the writing of the deed. He was a son of the notary public. There was a mistake made in some way in the body of the deed. It was copied from another deed he had. Instead of using the name Nathan T. Marbut, he used the name in the original deed. The matter was filled in before my uncle signed it. J. J. Griffith erased the names and inserted the other names. I signed it at the request, as well as I remember, of my uncle, Nathan T. Mar-but. Q. Do you remember at whose instance you signed this deed as a witness? A. As well as I remember, my uncle came to the door and asked me to come in. Q. You mean Nathan T. Marbut? A. Yes, sir. He said, ‘I want you to witness the execution of this deed.’ Mr. Griffith said, ‘All right; he will do.’ I am pretty sure that is the way it happened.” In the cross-examination of this witness by counsel for plaintiff, he stated: “I think there were three deeds made down there on that day; two deeds were made to Malinda J. Marbut and one to J. M. Marbut; the other deed to Malinda J. Marbut covered land in Lawrence county. Q. By counsel for plaintiff: These deeds were all delivered at the time? A. Yes, sir.”

As we have seen, plaintiff prevailed in the divorce proceedings, and under the aegis of that statute (Sec. 359, R. S'. 1909) which provides that if a woman be divorced from her husband for his fault or misconduct, she shall not thereby lose her dower, she brings this suit upon the assumption that the husband was seized in fee of the land described during coverture. This assumption is without foundation unless the deed made by Nathan T. Marbut to his first wife lacked delivery, a requisite always essential to the vesting of title. It has been graphically said by Lamm, C. J., in Donaldson v. Donaldson, 249 Mo. l. c. 246, that “the life of a deed is its delivery. Without delivery it is a mere dead scroll, inoperative to vest an estate. Delivery hinges on intent and is usually a mixed question of law and fact.” Mindful of this, despite the unequivocal testimony of the witnesses in regard to delivery, plaintiff contends that the well-established facts of Nathan T. Marbut’s continued dominion over the property during life, and his devise of the same to defendant at his death, are confirmations “strong as proofs of Holy Writ” that his deed to his first wife, although manually delivered, did not constitute a transfer of the property in good faith, but was a mere ruse to evade a contingency he theh feared might arise, but which did not, hence the deed had no effective force to transfer the title.

That he exercised dominion over the property after the transfer, which dominion bore all the indicia of ownership, there is no question; but where the marital relation is sustained in amity, as it seems to have been in this case, his dominion was not inconsistent with her ownership.

The multiplied cares of farm life demand the joint labors of husband and wife; of necessity it becomes his duty to control and direct the management of the property, the tillage of the soil and the harvesting and marketing of the crops, while she is ever occupied with the exacting demands of the household. Under these circumstances we are not impressed with the contention that the evidence of his authority over the property indicated any lack of good faith in the transfer to his wife.

The intention of the grantor, as shown by all the facts and circumstances at the time of the transaction, is material in determining the purpose' for which the deed was made.

We are told, in testimony elicited by plaintiff, that the grantor’s purpose was to transfer the title of the property to his wife to protect himself against the resultant effect of a possible judgment he feared might be rendered against him as surety on a bond, upon which suit was then pending in an adjoining county. Granted that this be true, no protection would have been afforded by this transfer unless it was complete in all of its particulars, and thereby effected a transfer of the title. If effective for this purpose, it was of like force for all purposes. So far, therefore, as the intention of the grantor is concerned at the time of the making of the deed, it is indicative of a purpose in good faith to transfer the title.

In determining the good faith of the conveyance, we are not limited to facts and circumstances throwing light on the intention of the grantor alone, but evidence as to the conduct of the grantee in this regard is pertinent.

That the deed was delivered to her when it had been executed and formally witnessed, is not gainsaid. There is nothing in the evidence to indicate that she regarded it as other than a conveyance to her in good faith, or that she ever did anything thereafter indicating an absence of ownership, other than to permit her husband to control the property, which we have shown was natural and necessary under the circumstances. Certainly she never did anything to divest title out of her or vest it in her husband. True, she never had the deed recorded, but as concerns the claim here made by plaintiff this did not affect the integrity of the grantee’s title. If, therefore, the title passed, and we so hold, it is immaterial how the husband may have regarded or construed the conveyance thereafter, and evidence of his devise of the property to defendant is a mere circumstance which may tend to show how the testator then regarded his tenure, but cannot affect the validity of the title which passed by the deed.

From all of which it follows that Nathan T. Mar-but was not seized of the property in question during coverture with the plaintiff, and that the judgment of the trial court should be affirmed, and it is so ordered.

Brown and Faris, JJconcur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE ex rel. EDMOND KOELN, Collector of City of St. Louis, v. ST. LOUIS YOUNG MEN’S CHRISTIAN ASSOCIATION et al., Appellants.
    Division Two,
    June 23, 1914.
    1. TAXATION: Real Estate: Used Exclusively for Religious Purposes. Where some of defendant’s rooms on the lower floor are rented for stores and other commercial purposes, the whole property is taxable. Even though that portion constitute less than fifteen per cent óf one floor, and the rest of the building be used for religious and educational purposes, the property is not used “exclusively” for those purposes, and is therefore taxable.
    2. -: -: -: Neglect of Officers to Assess. The mere neglect of lawfully constituted authorities for many years to assess property for purposes of taxation will not effect a repeal of a plain statute or constitutional provision, although if the law were susceptible of more than one construction that neglect would be persuasive argument that it is not taxable.
    Appeal from St. Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge.
    Affirmed.

      Spencer & Donnell for appellants.
    (1) Where the policy of a State is to exempt from taxation property used exclusively for religions, school, or educational purposes, such exemptions should not be construed as strictly as exemptions contrary to the public policy of the State, for as to such property, “exemption is the rule and taxation the exception.”
    “As the policy of the State has always been to exempt property of the character mentioned . . . it should not be construed with the same degree of strictness that applies to provisions making exemptions contrary to the policy of the State since as to such property exemption is the rule and taxation the exception.” Commonwealth, v. Y. M. C. A., 8 Va. App. 539; Bishop v. Rapahoe County, 89 Cal. 143; M. E. Church South v. Hinton, 92 Tenn. 188; State v. Fiske University, 87 Tenn. 223; Lodge v. Groesbeck, 120 Pac. (Utah) 192; W. and O. Home v. Bosworth, 112 Ky. 200; W. and O. Home v. Comm., 126 Ky. 386; St. Paul Church v. Concord, 75 N. H. 420'; People v. Sayles, 50 N. Y. Supp. 8; Philips Academy v. Andover, 175 Mass. 118. (2) When the main primary use of property is for purposes which are exempt from taxation, the mere fact that small parts of such property are used for income will not destroy the dominant use and make the entire property taxable. N. St. L. Gym. Soc. v. Hudson, 12 Mo. App. 344, 85 Mo. 32; State ex rel. v. Johnson, 214 Mo. 663; People ex rel. v. Lawler, 77 N. Y. Supp. 840; M. E. Church South v. Hinton, 92 Tenn. 188; Sisters v. Board of Review, 231 111. 317; County of Hennepin v. Brotherhood, 27 Minn. 460; Mi Hermon Boys’ School v. Gill, 145 Mass. 139; Commonwealth v. Y. M. C. A., 116 Ky. 711; People v. Sayles, 50 N. Y. Supp. 8. (3) Where a part of a Young Men’s Christian Association building is used for income, such part so used for income may be taxed, while the remainder of the building is exempt. Y. M. C. A. v. Douglas County, 60 Neb. 642; S. S. Union v. Phil., 161 Pa. St. 307; Phil. v. W. C. A., 125 Pa. St. 572; Y. M. Soc., 3 Mich. 172; Appeal Tax. Ct. v. Grand Lodge, 50 Mo. 421; Massenburg v. Grand Lodge, 81 Ga. 212; Grand Lodge v. New Orleans, 44 La. Ann. 569. (4) Under somewhat varying constitutional provisions it has been held in many states that all property of religious, educational or charitable institutions is exempt whether used for such purposes or invested for income. Trustees v. Louisville, 110 Ky. 470, 40 L. R. A. 119; Hospital v. Burdsall, 42 Atl. (Ñ. J.) 853; New Haven v. rScien. School, 59 Conn. 163.

      Echo arel W. Foristel and Frank H. Haskins for respondent.
    (1) Even though a building is otherwise exempt from taxation, still, if a portion of the building is rented for business purposes this destroys the exemption. The fact that the rent is applied toward the charitable purposes of the association does not alter the rule. Fitterer v. Crawford, 157 Mo. 51; Arkadelphia Lodge v. Crawford, 157 Mo. 357; Wyman v. St. Louis, 17 Mo. 335; State ex rel. v. Johnston, 214 Mo. 656; Gore v. Y. M. C. A., 157 111. 403. (2) If a portion of a building is used for charitable or educational purposes and the balance rented out, the two portions cannot be separated and the one taxed and the other not, but the entire building is subject to taxation. Fitterer v. Crawford, 157 Mo. 63.
   BROWN, J.

Action to collect general taxes on real estate. From a judgment for plaintiff, defendants appeal.

Respondent Koeln is the collector of the revenue in and for the city of St. Louis. The defendant St. Louis Young Men’s Christian Association is a religious and educational association, organized under the laws of Missouri (Art. 10, chap. 33, R. S. 1909). It is the principal defendant, and, for the purposes of this opinion, will hereafter be treated as the sole defendant.

Defendant owns two buildings in the city of St. Louis, which are mainly used for the physical education and spiritual and social development of young men and boys. However, some of the rooms on the first floor of said buildings, aggregating about fifteen per cent of the floor space thereof, are rented for stores and other commercial purposes. The rentals received by defendants are used only to promote the religious and educational work of the defendant association. The amount of taxes for which judgment was rendered is $2768.92, which about equals the amount received for that portion of defendant’s property rented for commercial purposes.

Some of the lands upon which defendant’s buildings are situated, and upon which the taxes in controversy were levied, are held by defendant under lease, while another part thereof is owned by defendant in fee, but no point is made by defendant on account of this diversity of ownership; therefore, for the purposes of this action we will treat the taxes as having-been levied upon property belonging wholly to defendant. The amount of support which defendant receives from voluntary contributions far exceeds its income from the rental of space in its buildings. The land upon which the taxes in controversy were assessed has been used for twenty years in the same manner as at present, during which twenty years no attempt has been made to assess general taxes against it.

I. The facts above recited are admitted by stipulation to be correct. On those facts the defendant contends that its real estate is not sub-jeet to taxation. It asserts that renting . , ^ fifteen per cent of the space in its buildings for commercial purposes, while the remaining eighty-five per cent is devoted to the purposes of the said association, does not render its real estate subject to general taxes.

Section 6, article 10, Constitution of Missouri, after exempting property of the State, municipalities and cemeteries, provides that the following additional property, to-wit: “Lots in incorporated cities or towns ... to the extent of one acre, . . . with the buildings thereon, may be exempted from taxation, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable.” Section 7 of said article 10; Constitution of Missouri, further provides that “all laws exempting property from taxation, other than the property above enumerated, shall be void.” Then comes section 11335', Revised Statutes 1909, which follows the precise language of the Constitution by exempting land to the extent of one acre when located in incorporated cities and towns and “used exclusively for religious worship, for schools, or for purposes purely charitable.”

Two of the cases cited by respondent (Taylor v. Labeaume, 17 Mo. 338; and Fitterer v. Crawford, 157 Mo. 51) furnish very strong support for the decree of the circuit court. The ruling in the Fitterer case (157 Mo. 51) is a construction of our present Constitution and statute, and holds that a building owned by a Masonic lodge, on account of the charitable designs and practices of such lodge, is exempt from taxation, so long as'it is used exclusively for such lodge purposes, but when two of the floors of such building are rented for commercial purposes then the entire building becomes subject to taxation. In deciding that case it was said: “There is a very material difference between the ‘use of a building exclusively for purely charitable purposes,’ and renting it out, and then applying the proceeds arising therefrom to such purposes. To rent out a building is not to use it within the meaning of the statute, but in order to use it, it must be occupied or made use of. Moreover, by leasing the property the lodge becomes the competitor of all persons having property to rent for similar purposes, and the plain and obvious meaning of the statute is that such property shall not be exempt from taxation.”

We are aware of the ruling in the case of State ex rel. v. Johnston, 214 Mo. 656, wherein it was held that a military school was not rendered subject to taxation because the proprietor of such school and his family used a part of the school property as their residence, the presence of such proprietor being continually necessary in supervising the property and caring for his. patrons. However, the facts in that case are so widely different from the one at bar that it affords no substantial support for plaintiff’s contention.

Appellant’s learned counsel cite cases from other jurisdictions where it has been held that only such per cent of a building owned by a religious corporation as is used for commercial purposes shall be subject to taxation, but we cannot bring ourselves to believe that any such intent was in the minds of the framers of our Constitution. Just what was in the minds of the framers of our Constitution, it is not necessary to ascertain. What they have said in regard to tax exemptions is s,o clear as to carry its own construction. We need only to read what they have said, and construe their words according to their “plain or ordinary and usual sense.” [Sec. 8057, R. S. 1909.] The neglect of lawfully constituted authorities to assess taxes against defendant’s property would be pursuasive evidence that said property is not taxable, if the law were susceptible of more than one construction. [Westerman v. Supreme Lodge, 196 Mo.l. c. 709.] However, the mere neglect of public officers, or others, to obey a plain constitutional provision or statute will not effect its repeal. [Lucas v. Brown, 127 Mo. App. 645, l. c. 653; Folk v. St. Louis, 250 Mo. 116, l. c. 141.]

However much we may sympathize with the exalted purposes of defendant, the words “dominant use” or “principal use” cannot be substituted for the words “used exclusively” without doing violence to a document which we have sworn to support and uphold.

Finding it our plain duty to affirm the judgment nisi, it is so ordered.

Walker, P. J., and Paris, J., concur.


author: ROY, C.

text:
    GENEVIEVE JODD, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
    Division Two,
    June 23, 1914.
    ASSIGNMENT OF DOWER: Limitations. The Act of March 22,1887 (Laws 1887, p. 177), required that an action for the assignment of dower must he brought within ten years after the act toot effect, or within ten years after the death of the husband. Since plaintiff’s husband died in 1879, her right of action was barred in 1897, or ten years after the statute went into effect. By Sec. 4558, R. S. 1889, the Act of 1887 was so amended as to require the action to be brought within ten years after the death of the husband. If it be contended that the latter statute is void as to this plaintiff in not giving her time, after the amendment, to institute her suit, it may be answered that if that be so, still it leaves the Aet of 1887 in full force, and by that law she is barred, having instituted her suit in 1910.
    Appeal from St. Louis City Circuit Court. — Eon. James E. Withrow, Judge.
    Affirmed.

      E. K. Bunch and Ernest C. Dodge for appellant.
    The trial court erred in sustaining defendant’s demurrer, because: Dower is not within the Statute of Limitations, unless made so expressly. Dyer v. Witter, 89 Mo. 95, affirming 88 Mo. 67. The Statute of Limitations does not commence to run against a widow until dower has been assigned, nor is staleness of demand any defense to an action for admeasurement of dower. Johns v. Fenton, 88 Mo. 67. The law existing at the time of the marriage (1848) and not at the time of its dissolution (1879) determines the marital rights of the parties. Riddick v. Walsh, 15 Mo. 519. The act limiting actions for the recovery of real estate of Feb. 4, 1847, and the same act, R. S. 1855, p. 1045, does not include the limitations of suits for dower. Littleton v. Patterson, 32 Mo. 357. Where there is a change in the law after the husband’s alienation, the widow’s dower in respect to the aliened lands is governed by the law as it existed at the time of the alienation. Kennerly v. Mo. Ins. Co., 11 Mo. 204. A widow is entitled to dower in all the lands of which her husband was seized during the marriage to which she does not relinquish her right in the manner prescribed by law. No act, deed or conveyance of her husband without her assent evidenced by her acknowledgment thereof in the manner required by law to pass the estate of a married woman could deprive her of that right. Hall v. Smith, 103 Mo. 289; R. S. 1879, sec. 2186.

      James F. Green, for respondent.
    (1) Plaintiff’s third amended petition wholly failed to state a cause of action, and the demurrer was properly sustained. Harrison v. McReynolds, 183 Mo. 533. (2) An action for dower is barred by the Statute of Limitations, unless suit is commenced within ten years. Sec. 391, R. S. 1909; Harrison v. McReynolds, 183 Mo. 533; Robinson v. Ware, 94 Mo. 678: Null v. Howell, 111 Mo. 273.
   ROY, C.

This is a suit for the recovery of dower in certain real estate in St. Louis, and was begun in the year 1910.

The petition alleges the marriage of plaintiff with Michael Jodd in 1848, and that said Michael Jodd was seized of the land in his lifetime; that he died in 1879, and that defendant entered the land in 1907 and was in such possession at the institution of the suit and wrongfully deforced plaintiff of her dower. There was a prayer for the admeasurement of her dower, for damages and for monthly rents and costs. There was a demurrer to the petition on the grounds that it stated no cause of action and that plaintiff’s action was barred by section 391, Eevised Statutes 1909. The demurrer was sustained. The plaintiff declined to further plead, and judgment went against her, from which she has appealed.

At common law, after the death of the husband and prior to the admeasurement of dower, the widow had no estate in the land of which her husband died seized, but merely a right to have her dower assigned. The Statute of Limitations, prior to 1887 did not apply to such action for assignment of dower. By the act of March 22, 1887 (Laws 1887, p. 177) it was required that such action should be brought within ten years after the act took effect or within ten years after the death of the husband. As plaintiff’s husband died in 1879, the plaintiff’s right of action for assignment of dower was, by that statute, barred in 1897, ten years after the statute went into effect. By the Eevised Statutes of 1889, section 4558, now section 391, Eevised Statutes 1909, the Act of 1887 was so amended as to require the action for admeasurement of dower to be brought within ten years after the death of the husband. If it be contended that the latter statute is void as to this plaintiff in not giving her time after the amendment to institute her suit, it may be answered that if the section as it now stands is invalid as to her, it leaves the law of 1887 in full force (State v. Thomas, 138 Mo. 95), and by that law she is barred.

The judgment is affirmed.

Williams, G., concurs.

PEE CUEIAM. — The foregoing opinion of Eoy, C., is adopted as the opinion of the court.

All of the judges concur, except Faris, J., not sitting.


author: WILLIAMS, C.

text:
    BERTHA WILLIAMS, Appellant, v. ELLA A. WILLIAMS and JOHN T. WILLIAMS.
    Division Two,
    June 23, 1914.
    1. EVIDENCE: Objection: Appeal. To be of advantage on appeal an objection to a question must be specific. An objection in an action for dower based on a common-law marriage was not sufficient which ran: “I know it has been held that the statements of the deceased are admissible in evidence. I don’t think it is sound doctrine, and I am going to object to the witness testifying to what the deceased said.”
    2. -; offer of Proof: Common-Law Marriage: Appeal. An offer to prove, in support of an allegation of common-law marriage, that the alleged husband referred, in the presence of witness, “to the subject of divorce, and referred to the plaintiff’s getting a divorce, and also to the fact that there had been a good many divorces in his family,” does not enable the Supreme Court to pass upon the materiality of the testimony attempted to be offered, because it does not set forth what the witness would say if permitted to answer and does not even clearly show that it was a statement about a divorce between plaintiff and the alleged husband.
    3. -: -: Materiality: Appeal. From an offer that a witness, in an action for dower based on an alleged common-law marriage, would testify that the deceased had said in conversation with the plaintiff that certain property owned by the deceased “was worth so much,” it does not appear that the evidence was material.
    4. -: Stricken Out at Trial: Not Copied in Bill of Exceptions. In order that the Supreme Court may consider the admissibility of evidence stricken from a deposition at the trial, the part stricken out" must appear in the bill of exceptions.
    5. -: Documentary: Stricken Out at Trial: Copied in Bill of Exceptions: Equity. Where in an equity suit documentary evidence stricken out upon the trial is copied into the bill of exceptions, the appellate court will consider so much of it as was admissible, and the party asserting its admissibility at the trial cannot possibly be injured by reason of the trial court’s ruling.
    6. SUIT FOR DOWER: Common-Law Marriage: Equity: Appeal: Evidence. Evidence in an equitable suit for dower held, to sustain a finding that there had been no common-law marriage between the plaintiff and the deceased.

      Appeal from St. Louis City Circuit Court. — Now. George N. Shields, Judge.
    A^IiUMED.

      O. F. Karbe and S. C. Rogers for appellant.
    (1) The court erred in finding against plaintiff and for the defendants under the law and the evidence. Davis v. Stouffer, 132 Mo. App. 555; Cargile v. Wood, 63 Mo. 501; Dyer v. Brannoek, 66 Mo. 361; Wadding-ham v. Waddingham, 21 Mo. App. 609; Busch v. Busch, 81 Mo. App. 562; E. S. 1909, secs. 345, 351, 355, 358. (2) The court erred in requiring plaintiff to prove, in order to make a case, an actual, open declaration of contract of marriage. Cargile v. Wood, 63 Mo. 501; Dyer v. Brannoek, 66 Mo. 361; Blair v. Pattison, 131 Mo. App. 122; Waddingham v. Waddingham, 21 Mo. App. 609; Busch v. Busch, 81 Mo. App. 562; Imboden v. Trust Co., Ill Mo. App. 220; Plattner v. Plattner, 116 Mo. App. 405; Davis v. Stouffer, 132 Mo. App. 555'. (3) The court erred in overruling plaintiff’s motion for a new trial. Nelson v. Jones, 245 Mo. 579. (4) The court erred in excluding proper, legal, competent, relevant and material evidence offered by the plaintiff. Cargile v. Wood, 63 Mo. 501; Imboden v. Trust Co., Ill Mo. App. 220; Coy v. Humphreys, 142 Mo. App. 92; See. 6362, E. S. 1909 ; Holloway v. Kansas City, 184 Mo. 19; Davenport v. Hannibal, 108 Mo. 471. (5) The court erred in permitting defendant, John Williams, to testify as to declarations by deceased, Walter John Williams, without the presence of plaintiff or other person. Collard v. Busch, 138 Mo. App. 94; Bishop v. Brittain Inv. Co., 222 Mo. 699; Imboden v. Trust Co., Ill Mo. App. 220. (6) The court erred in finding against plaintiff and for defendants because defendants by their objections to certain documentary evidence admitted the common-law marriage. (7) Because the court erred in admitting, over the objection and exception of plaintiff, improper, irrelevant, illegal, incompetent and immaterial evidence offered by the defendants.

      James Booth for respondents.
    (1) The trial court saw the witnesses, observed their demeanor while upon the stand and his opportunity for judgment on the weight of the credible evidence in the case was better than that of an appellate tribunal that has only the cold record before it with no opportunity to watch the demeanor of the witnesses. Speaking to a similar fact in a similar case where it was charged that the appellate court ought to review the evidence and reverse the finding of the trial court this court thus declared the rule: “In determining whether he erred in so finding it must be borne in mind that he had the witnesses before him and could observe their manner of testifying and had exceptional opportunities to weigh their evidence.” Topper v. Perry, 197 Mo. 549. (2) Where, as in this case, the judgment of the trial court is right upon the whole record, the various rulings of the trial court, even though error (which is controverted), are immaterial and its judgment ought to be affirmed. Bank v. Tuttle, 144 Mo. App. 249; Gribbs v. Haughowout, 207 Mo. 384. (3) The rule is well established in this State that the statements and declarations of Walter Williams as to his relations with plaintiff were admissible as evidence in this case. Property rights have been vested and divested on the strength of these decisions and it is too late now to question the correctness of the rule. Topper v. Perry, 197 Mo. 531; Imboden v. Trust Co., Ill Mo. App. 235. (4) Cohabitation and reputation are at best only presumptive proofs; the trial court could have found these facts and still found as a matter of fact there was no marriage. Topper v. Perry, 197 Mo. 531. Plaintiff’s case rested entirely upon the inference .to be drawn from evidence of cohabitation. The doctrine of presumption had no abiding place in this case. Presumptions of fact become inoperative when the actual facts are disclosed. Schaub v. Railroad, 133 Mo. App. 444; Stone v. Perkins, 217 Mo. 586. (5) The admission of improper evidence is not properly before this court and this court should disregard such assignment of error. True it is charged in appellants brief, “that the court erred in excluding proper, legal, competent, relevant and material evidence offered by the plaintiff.” Nowhere does the brief “distinctly and separately allege the errors committed by the trial court” as required by rule 15 of this court. At best the purported assignment of error as to the admission of evidence is an invitation to the court to go through some two hundred pages of the record and perform a duty that the rule required counsel to perform for himself. (6) In this case while there may have been some evidence of cohabitation there was no general reputation concerning the matter. The evidence was insufficient to make a prima-faeie. case. Topper v. Perry, 197 Mo. 531. (7) There was no evidence of a marriage by words of the present. This was required and having failed to furnish such proof the finding was properly against the plaintiff.. Topper v. Perry, 197 Mo. 531.
   WILLIAMS, C.

This is a suit in equity by which plaintiff seeks to establish her dower interest in certain land, at one time owned by her alleged common-law husband, Walter J. Williams, now deceased,'and to set aside, on the ground of fraud, a certain conveyance of said land made by her said husband to one of the defendants herein. The answer contained a general denial and also denied that plaintiff was, at any time, the wife of said Walter J. Williams and further alleged that in the year 1904 said Walter Williams was the owner of the real estate described in the petition and on that date he voluntarily conveyed the same in fee to the defendant Ella A. Williams. The reply was a general denial. The evidence on the part of the plaintiff tended to show that in 1903 plaintiff and Walter J. Williams began living together in the city of St. Louis, each being about thirty-three years of age. Up to this time neither of the parties had ever been married, but plaintiff had a daughter then eight years of age, who lived with them. It is not claimed that Walter Williams was the father of this child, but it is claimed that its father’s name was Bauman. Williams was a surveyor doing surveying work mostly for railroads, and his occupation kept him out of the city a greater portion of the time, but generally he would be at home from one to two days each week. During this time plaintiff introduced Williams to some of her neighbors as her husband and, on some occasions, he referred to her as his wife. Plaintiff’s little daughter called Williams father, papa and daddy. Plaintiff and Williams slept in the same room while he was at home. There seems to have been some question in the minds of some of plaintiff’s relatives and .neighbors as to the relationship existing between plaintiff and said Williams. Three of plaintiff’s witnesses testified that they heard Williams say on different occasions, “In the eyes of God, we are man and wife,” or they were “as good as married, in the eyes of God” and that they were ‘ ‘ already married in the eyes of God. ’ ’ They continued this relationship until sometime in August, 1905, when Williams’ work called him to Haynesville, Louisiana,'and plaintiff and her daughter followed him there, where they lived for a short time at. a hotel and when talking to some of the people they met there, referred to each other as husband and wife. After they had gone to Louisiana, plaintiff’s brother-in-law wrote Williams a letter concerning his relationship with the plaintiff and Williams replied telling the brother-in-law not to worry that he would take care of his wife and little girl and that they would he legally married on the way back. They returned to St. Louis from Louisiana in 1905 and continued their relationship in St. Louis somewhat similar to what it was before going to Louisiana. Some people called plaintiff Mrs. Williams and others called her Mrs. Bauman. At one time in 1905, said Williams with plaintiff and her daughter rode one trip on the Iron Mountain Railroad upon a pass issued to “W. J. Williams, Wife and Child.” Plaintiff’s maiden name was Bertha Fisher. Several letters written at different times from Walter Williams to the plaintiff were offered in evidence. In these letters he addressed the plaintiff as “Bear Birdie,” and generally referred to her in the body of the letter as “sweetheart.” In one letter written from Louisville, Georgia, February 20,1908, he says“As soon as I get some money, I am going to have my wife and child down here. Do you hear, young lady?” In a letter from Ft. Smith; Arkansas, dated January 27, 1904, he writes: “I am getting anxious to have the job get' over now as I want to see my wife and baby.” The plaintiff’s evidence further tended to show that during the time of the existence of this relationship' plaintiff was working in the capacity of a professional nurse, doing professional nursing, whenever she had work of that kind to do. The evidence also shows that at different times Walter Williams when away from St. Louis would send plaintiff money. Williams became the owner of the lot here in controversy in 1894 and in 1904 deeded the' same to his mother, one ■ of the defendants herein. This deed, however, was not acknowledged until September 1, 1909, and was not recorded until September 2, 1909. Williams died September 8, 1909, at a hospital in the city of St. Louis. The evidence on the part of defendant was to the following effect: Defendant John T. Williams testified that he was the father of Walter J. Williams, deceased; that he first met plaintiff, December 18, 1905:, at the Union Station in St. Louis; that just before meeting her at the Union Station, his son Walter told him that a woman with whom he had cohabited had demanded marriage; that the woman referred to was plaintiff; that he had consented to marry her and was to meet her at the Union Station and they were to go down the railroad to some town to be married; that he had changed his mind and stated that he could not marry her and that if he did he would go crazy in six months; he told his father that he was not the cause of her downfall but that he had first met her in a rooming house. Walter asked his father and another man by the name of Herbert Abrams, a friend of Walter’s, to go to the Union Station and there meet plaintiff and explain to her that he could not marry her. Witness said that he and Mr. Abrams went to the Union Station and there found the plaintiff waiting with some of her relatives. Witness asked plaintiff if her name was Miss Bertha Fisher and she said “Yes” and further stated in reply to questions that she was to meet Walter there and that they were going down the road to be married. Witness than, told her what Walter had said and she turned away and walked back to her friends. At plaintiff ’s solicitation, witness went to see her a second time at her house on January 18,1906, when plaintiff claimed to be- suffering from a hemorrhage and wanted to know if witness had heard from Walter. Witness next saw plaintiff down town in 1909 a short time before Walter’s death. Plaintiff asked witness if he recognized her and he said, “Yes, you are Bertha Fisher.” At this time, Walter was sick at defendant’s home and witness told plaintiff that they were going to take him to the hospital and plaintiff said she would like to nurse him and gave witness her card which read as follows: “Mrs. B. Bauman, 2854 Missouri avenue, Victor 675R. ’ ’ Later plaintiff came to the hospital and nursed Walter during the last two weeks of his sickness. After Walter’s death, plaintiff was at witness’s house and said that “a lawyer had come to her the next morning after Walter’s death and offered to secure a common-law marriage agreement and that she had ordered him out of the house. ” And that plaintiff said “she made no such claim.” Later, on September 29, 1909, plaintiff came to defendant’s house to see about receiving payment for the nursing. Plaintiff said that fifty dollars would be satisfactory and defendant gave her a check for that amount. The check was made payable to Miss Bertha Bauman and was afterwards endorsed by plaintiff and cashed by her at the bank. At the time of receiving this check* plaintiff executed the following receipt to defendant: “Received. St. Louis, September 29,1909, of Jno. T. Williams the sum of fifty dollars in full of all demands for nursing, etc., of his son, Walter Williams. (Signed) Mss. Bertha Bauman.” Plaintiff’s signature on the receipt was identified by her daughter while a witness in behalf of plaintiff. When plaintiff presented the check at the bank, the cashier knew her under the name of Bertha Fisher and upon being interrogated by the cashier, plaintiff stated that she had been married and taken the name of Bauman. Plaintiff attended Walter’s funeral. One of defendants’ witnesses testified that she talked to plaintiff as they were on a car coming back from the funeral and that plaintiff stated that she and Walter were engaged to be married and were to have been married the next month. Herbert Abrams-testified that he went with Walter’s father to meet plaintiff at the Union Station at the time testified to by John T. Williams. This witness also stated that Walter had many times told him that he was not married to the plaintiff. Defendant Ella A. Williams, the mother of Walter, testified that Walter lived with them but that he would be away occasionally; that she first met plaintiff at the hospital during Walter’s last sickness. The deed from Walter to his mother was acknowledged seven days before his death. The aclmowledgment shows that he declared himself at that time to be single and unmarried. The case was heard by the circuit court of the city of St. Louis, resulting in a finding and decree in favor of defendants and the dismissal of plaintiff’s bill. Plaintiff perfected an appeal to this court.

I. It is contended that the court erred in permitting defendants to introduce testimony as to statements or declarations made by said Walter J. Williams concerning his relationship with plaintiff. At the time this testimony was admitted, appellant’s attorney made the following objection: “I want to offer this objection; I know it has been held that the statements of the deceased are admissible in evidence. I don’t think it is sound doctrine, and I am going to object to the witness testifying to what the deceased Walter Williams said:” The court overruled the objection and exception to the ruling was saved. The above was not a sufficient objection upon Which to base error. An objection to a question should be specific so that.the trial court may have a chance to pass upon the exact point which is intended to be urged. [Kinlen v. Railroad, 216 Mo. 145; O’Neill v. Kansas City, 178 Mo. 91; Schmidt v. St. Louis Ry. Co., 163 Mo. 645; Primm v. Raboteau, 56 Mo. 407.]

II. It is further contended that the court erred in excluding “proper, legal, competent and relevant and material evidence offered by plaintiff.” tn aid of this assignment, it is contended that the court erred: (1) in ex-eluding testimony of witness Marie Bauman as to what Walter Williams said with reference to plaintiff’s securing a divorce; (2) in refusing to permit the same witness to testify to what deceased :said about the title to the property; (3) in excluding portions of the testimony of witness Powell; (4) in striking out a portion of the testimony of witness Dr. Waller; (5) in excluding plaintiff’s exhibits D, H and I. The offer to prove under (1) above does not set forth what the witness would say if permitted to answer the question and does not even clearly show that it was a statement about a divorce between plaintiff and Walter Williams. We are therefore unable to pass upon its materiality. [Hickman v. Green, 123 Mo. 165; Shelby County Railroad v. Dimmitt, 235 Mo. 489, and cases therein cited.] The offer to prove under (2) above was that the witness would testify that “Williams said the property was worth so much.” It does not appear that this testimony was material. As to point (3) above, the testimony was in deposition form but appellant has failed to copy into her bill of exceptions the part stricken out and we cannot determine as to its admissibility. As to points (4) and (5) above the testimony was in deposition and documentary form and the portions which the trial court ruled should be stricken out are set forth’ in full' in the bill of exceptions and this being a suit in equity and the review here in a sense a trial de novo such portions as are properly admissible may be considered by this court and plaintiff could not possibly be injured by reason of the trial court’s ruling thereon.

III. It is further urged that the "court erred in hading against plaintiff and for the defendants under the law and the evidence.”

This case was tried as a suit in equity and while we are not bound by the findings or conclusions reached by the learned trial court, where we find the evidence does not warrant such finding, yet it is fully recognized by all the authorities that, since the trial court has an opportunity to see the witnesses in person, while we see but the printed record, considerable deference is, and should be, given to the findings of the chancellor. After carefully considering and weighing all the testimony given in the case we are not prepared to say that the court erred in finding that plaintiff and Walter Williams were not husband and wife. The burden was upon plaintiff to prove the marriage. It was not claimed that a statutory marriage existed but an attempt was made to establish a marriage under the common law. It is true that there was evidence tending to show the cohabitation of plaintiff and defendant and some slight evidence that they were reputed to be married and that deceased referred to plaintiff as his wife and she to him as her husband both while living at St. Louis and while stopping a short time at the hotel in Louisiana. On the other hand the evidence upon the part of the defendant tends to prove that they were not married.

Plaintiff’s evidence to the effect that plaintiff’s little girl called Williams father, and that plaintiff introduced him as her husband and he referred to her as his wife, in conversations occurring at the house where they lived’, does not carry much weight when it is remembered that the plaintiff’s little girl between ten and fifteen years old was living with them. It is not likely that plaintiff or even Williams would desire to have this little girl of tender years know that they were living together unlawfully, and such statements are just as consistent with the theory that they didn’t want the little girl or their neighbors to know of their illicit cohabitation as with the theory that they were declarations of an existing fact. The same could be said as to the testimony that they referred to each other as husband and wife while talking to the hotel keeper and his wife and a few other people with whom they came in contact while stopping for a few months at the hotel in Louisiana. It appears from the evidence that the hotel was a respectable ace and therefore their being able to find lodgment there undoubtedly depended upon the impression given out by them that they were married. Furthermore, it appears from the testimony offered by plaintiff that some of her relatives and neighbors entertained doubt concerning the marriage. This becomes apparent when it is recalled that plaitniff’s brother-in-law wrote to "Williams in Louisiana and according to his testimony received a reply from Williams that they would be ‘ ‘ legally married on their way back;” and further from the testimony of three of plaintiff’s witnesses to the effect that they had heard Williams make the statement at different times that he and plaintiff were already married in the eys of God,” the statement itself clearly showing that the legality of their relationship was being questioned by her relatives and neighbors.

The only public declaration made by Williams, the authenticity of which is not questioned, is contained in the deed which plaintiff seeks to set aside. In acknowledging this deed, about one week prior to his death, plaintiff declared himself to be single and unmarried. It further appears from the evidence that Williams’ work kept him away from home the greater portion of the time; that upon his returns to the city, he spent a portion of a day or sometimes two days with plaintiff and then would go to the home of his father and mother for a short time. His mother testified that during this, time he was making his home with them. He was at the home of his father and mother prior to being moved to the hospital. Plaintiff under the name of Mrs. Bertha Bauman applied to deceased’s father to secure the job of helping nurse him. Plaintiff nursed him during the daytime for about two weeks next prior to his death. She attended the funeral and later called at defendant’s home to receive pay for her nursing. She received a cheek for fifty dollars from defendants, payable to the order of Miss Bertha Bauman, and executed a receipt for the same signing her name as Bauman. Later she presented the check to the bank and endorsed the cheek “Miss Bertha Bauman, 2854 Mo. Av.”

It is true that some of plaintiff’s testimony, when standing alone, tends to prove the existence of the marriage but when all the evidence is considered it strongly appears that the greater weight of the evidence is on the side of the contention that they were not husband and wife.

The subject of common-law marriage was fully discussed by this court in the case of Topper v. Perry, 197 Mo. 531, and in the case, of Bishop v. Brittain Investment Company, 229 Mo. 699. It is therefore unnecessary that the subject he further discussed herein.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.