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able extent before 1906. The parties, in may recover the property so transferred, or its their testimony, explain the execution of the value, from the person to whom it was transtwo deeds by the statement that, the mother ferred, unless he was a bona fide holder for having furnished the greater part of the value prior to the date of the adjudication." money with which the land had been paid While the creditor cannot avail himself of for, this method was pursued to transfer to this remedy, under ordinary circumstances, her the title, the son having no other con- without obtaining a judgment at law upon nection with the transaction than as a mere his claim, his right to sue at law being arconduit; and that she failed to record her rested by the petition in bankruptcy, it seems deed, at first for lack of the money to pay reasonable to permit the trustee to protect the fee, and then through pure neglect. None the right of which the proceeding might othof the papers or records of the bankruptcy erwise deprive him; but this subdivision proceedings are in evidence, and no attempt does not authorize the trustee to avoid a was made to show the condition of the bank-transfer, unless some creditor, by proper prorupt's estate at the time this suit was instituted.

The final judgment was entered September 29, 1908. It cancels the deed which was changed, as above stated, and recorded February 2, 1906, and decrees the title to the lot to be in Vaughn H. Todisman in fee. Motions for a new trial and in arrest of judgment, raising the questions presented here for our determination, were filed by defendant and overruled by the court.

J. T. Burgess, of Monett, for appellants. Sizer & Kemp, of Monett, for respondent.

BROWN, C. (after stating the facts as above). [1] This suit is, by the averments of the petition, founded expressly upon the provisions of section 650 of the Revised Stat

utes of Missouri 1899. The judgment from which the appeal is taken was entered in 1908, and is consequently unaffected by the amendment of 1909. Laws 1909, p. 343. The question, therefore, suggests itself whether or not the trustee in bankruptcy, who is suing to make the property in controversy available to the creditors of his bankrupt, has selected a remedy available for that purpose, and, if so, whether his petition presents a theory which entitles him to the relief embodied in the judgment.

ceeding, might have avoided it in his own favor. In re Economical Printing Co., 110 Fed. 514, 49 C. C. A. 133. He represents the creditor, who, in this case, where no lien is in question, has no greater interest in the property than he would have, had the paper title remained in Vaughn H. Todisman, and the bankruptcy proceeding had not intervened. Argument is not needed to demonstrate that in such case the general creditor has no "title, estate or interest" in the land which entitles him to bring the debtor into court, under the provisions of section 650, to obtain a judicial declaration that he may proceed, by judgment and execution, to avail himself of it for the collection of his debt.

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that the trustee is proceeding under the proIf, however, we disregard the statement visions of a statute which he has no power to invoke, and examine his petition for the purpose of ascertaining whether it states facts sufficient to constitute the cause of action which the bankrupt act authorizes him to pursue, we find it equally insufficient. Although it states that his bankrupt "is the owner in fee simple absolute" of the property in question, and that he is informed and believes that the defendant claims title in fee to the same "by reason of certain deeds from Vaughn H. Todisman to Hattie F. Todisman, [2, 3] He depends for his title entirely upwhich deeds of conveyance plaintiff on the provisions of section 70 of the bank- asserts and charges to be fraudulent and rupt act (30 Stat. L. 565), which provided void by reason of having been made in fraud that he shall "be vested by operation of law of creditors of the said Vaughn H. Todiswith the title of the bankrupt as of the date man," it stands upon the title of the bankhe was adjudged a bankrupt to all rupt, and fails to state facts showing that property transferred by him in fraud of his the trustee has the right to proceed in becreditors." This does not avoid the title of half of any such creditor. He has no right the fraudulent grantee. In re Mullen (D. C.) superior to that of the creditor whom he 101 Fed. 413. Nor does it give him a right represents. Admitting that the conveyances of action to have the fraudulent conveyance under which the defendant claims are fraudset aside in equity, because the bankrupt had ulent, no right to avoid them exists, unless no such right. It is simply such a title as the property is needed to pay the claims filed is necessary to enable a creditor to avail him- against the bankrupt debtor; and this should self of the property, under proper circum- be shown affirmatively by the petition. Muelstances, in satisfaction of his debt. To this ler v. Bruss, 112 Wis. 406, 88 N. W. 229; end the trustee is made by the same section Prescott v. Galluccio, 21 Am. Bankr. Rep. (70e) the representative of any creditor en- 229, (D. C.) 164 Fed. 618. titled to the remedy. It provides as follows: "The trustee may avoid any transfer by the bankrupt of his property which any creditor

[4, 5] The plaintiff proved, as a necessary part of his case, that Vaughn H. Todisman acquired the property involved in this con

MORAN V. STEWART.

(Supreme Court of Missouri. Division No. 2.
Nov. 13, 1912. Rehearing Denied Dec.
10, 1912.)

JECTION AND EXCEPTION-DIRECTIONS
COMMISSIONERS.

ΤΟ

sioners appointed to ascertain the value of Error in the directions given the commisreal estate in controversy in a widow's action for dower and damages for deforcement thereof is not reviewable, where no objection is made or exception taken when the commissioners were appointed and directed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1248-1250; Dec. Dig. 198.*]

2. APPEAL AND ERROR (§ 266*)-NECESSITY OF EXCEPTIONS-REPORT OF COMMISSIONERS.

Error in the directions to commissioners appointed to ascertain the value of real estate in a widow's action for dower and damages was not reviewable, where no exceptions were saved to the court's approval of the report of the commissioners.

man and his wife, the defendant here, without the payment of any valuable consideration therefor. It was also in evidence that this conveyance was a part of an arrangement by which the title to the lot was to be conveyed from M. Y. Todisman, the husband, 1. APPEAL AND ERROR (§ 198*)-TIMELY OBthrough the present bankrupt to this defendant, his mother; and that, on the same date and at the same time, another deed was executed by the grantee in the first, who was a single man, to his mother. Were this true, and we have no reason to doubt it, especially in view of the fact that it took place several years before the bankrupt had become indebted, or contemplated the business which resulted in his indebtedness, so far as the evidence shows, the deeds would constitute a full and mutual consideration for each other; and no creditor then existing, or who might thereafter sustain that relation, would have any reason to complain. The omission of the defendant to record her deed would not vitiate it, nor give existing creditors a right to complain. As to subsequent creditors, "it is only when the withholding the instrument from record gives the grantor, upon the faith of the ownership by him of the property conveyed, a fictitious credit, and some one has thereby been misled to his injury, that such failure to record will be held to be fraudulent." Clark v. Lewis, 215 Mo. 173, 187, 188, 114 S. W. 604, and cases cited. Nor would the alteration of the deed by changing the date, in 1906, have the effect to divest the title conveyed by it in 1902; nor would that be fraudulent as to any class of creditors, unless it was a part of a scheme participated in by the grantee to give her son a fictitious credit. In such cases she would be estopped from claiming otherwise than according to the terms of the changed deed against those creditors who had incurred the relation by reason of the false impression so produced. Potter v. Adams, 125 Mo. 118, 28 S. W. 490, 46 Am. St. Rep. 478, and cases cited.

We have referred so fully to the facts in evidence to show that, while the petition, founded as it is upon the assertion that Vaughn H. Todisman is the owner in fee simple absolute of the land in controversy, is inconsistent with the assertion that he has conveyed that title, even for the purpose of defrauding his creditors, the evidence, as we understand it, does not tend to support either of these theories, so that it suggests no issue that could properly be included by amendment, were the case remanded for further proceedings. Carter v. Dilley, 167 Mo. 564,

67 S. W. 232.

The judgment of the Barry county circuit court is therefore reversed.

PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur.

Error, Cent. Dig. 88 1552-1571; Dec. Dig. 8 [Ed. Note. For other cases, see Appeal and 266.*]

3. APPEAL AND ERROR (§ 77*)— APPEALABLE

JUDGMENTS

NARY ORDER.

FINAL JUDGMENT-PRELIMI

The court's order, in a widow's action for to set off dower, appointing commissioners homestead and dower therein, and directing them how to fix the value of the property, was not a final judgment, but was merely a preliminary order leading up to final judgment.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 444-463; Dec. Dig. §

77.*]

4. APPEAL AND ERROR (§ 272*)-NECESSITY OF TIMELY EXCEPTIONS.

It is the duty of the parties in a civil case to immediately except to every erroneous act of the trial court which tends to prejudice their rights, to the end that the court may correct its error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1611-1619; Dec. Dig. § 272.*]

5. DOWER (§ 82*)-ACTION BY WIDOW-DIRECTIONS TO COMMISSIONERS.

need not give written directions on their duIn a widow's action for dower, the court ties to the commissioners appointed to ascertain the value of the real estate in controversy. [Ed. Note.-For other cases, see Dower, Cent. Dig. § 321; Dec. Dig. § 82.*]

6. APPEAL AND ERROR (§ 274*)-SUFFICIENCY OF EXCEPTION.

An exception to the order of the court sioners appointed to ascertain the value of real overruling objections to the report of commisestate in controversy in a widow's action for dower, is insufficient to present for review error in approving such report.

Error, Cent. Dig. §§ 1631-1645; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and

274.*]

7. DOWER (8 99*)—ReporT OF COMMISSIONERS -EXCEPTIONS.

Since Rev. St. 1909, §§ 374, 6713, providing for commissioners to assign dower and homestead, do not require written exceptions to their report, the court may, when written objections are made, determine the correctness

or legality of such report on grounds not montioned in such objections.

[Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 345-347; Dec. Dig. § 99.*] 8. APPEAL AND ERROR (§ 274*)—FAilure to EXCEPT-CURE-DOWER-RIGHT OF COM

MISSIONERS.

Failure of the plaintiff, in a widow's action for dower, to save exceptions to the approval of the report of commissioners, was not cured by her motion, made four years later, to set aside the report, nor by her exceptions to the striking of such motion from the files.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1631-1645; Dec. Dig. § 274.*]

9. ADVERSE POSSESSION (8 62*) - WIDOW's QUARANTINE-TITLE ACQUIRED.

A widow occupying property under a widow's quarantine cannot thereby acquire an absolute title against the heirs or remaindermen. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 323-332; Dec. Dig. § 62.*]

10. LIFE ESTATES (§ 8*)-ADVERSE POSSES

SION.

Possession of one holding a life estate can never become hostile to the remaindermen. [Ed. Note. For other cases, see Life Estates, Cent. Dig. §§ 24-28; Dec. Dig. § 8.*] 11. ADVERSE POSSESSION (§ 62*)-RIGHTS OF HEIRS WIDOW'S QUARANTINE.

By delay during which a widow is permit ted to occupy the whole of an estate, the other heirs do not lose their right to apply to the court to assign dower to her.

[Ed. Note.--For other cases, see Adverse Possession, Cent. Dig. §§ 323-332; Dec. Dig. 8 62.*]

12. DOWER (§ 81*)-MULTIPLICITY OF SUITS ASSIGNMENT OF DOWER-SEPARATE TRACTS. Where, in a widow's action for dower, it appeared that defendant was the owner of the remainder in two tracts of land, subject to the widow's quarantine, dower, and homestead rights, the court, in order to prevent multiplicity of suits, properly ordered plaintiff's dower in both tracts to be assigned at the same time. [Ed. Note. For other cases, see Dower, Cent. Dig. §§ 312-316; Dec. Dig. § 81.*]

13. DOWER (§ 6*)-MARRIAGE CONTRACT-VALIDITY EFFECT. A marriage contract, invalid for want of consideration, could not entitle the widow to any interest in the property of her deceased husband, especially where she repudiated such contract in order to have dower and homestead. [Ed. Note. For other cases, see Dower, Cent. Dig. 9; Dec. Dig. § 6.*]

14. DOWER (§ 99*)-ASSIGNMENT-COMMISSIONERS' REPORT.

The fact that the court, in a widow's action for dower, determined, on the pleadings at a preliminary stage of the trial, that she was entitled to dower in certain land, did not show that the approval of the report of the commissioners, by which she was given no part of such tract, was erroneous.

[Ed. Note.-For other cases, see Dower, Cent. Dig. §§ 345-347; Dec. Dig. § 99.*]

15. DOWER (§ 105*)-DAMAGES FOR DEFORCEMENT-RIGHTS.

Since under Rev. St. 1909, § 389, defining the widow's right to dower, a judgment for damages must be special against the interest of the heir or other person wrongfully depriving her of dower in the very land set off to her as dower and homestead, a widow was not entitled to damages against a defendant who had

not deprived her of possession of any part of the land set off to her.

[Ed. Note.-For other cases, see Dower, Cent. Dig. 189; Dec. Dig. § 105.*]

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by Angie Moran against Samuel B. Stewart. From judgment for defendant, plaintiff appeals. Affirmed.

for deforcement thereof. From a judgment Action by widow for dower and damages assigning dower and rejecting her claim for damages, she appeals.

On February 5, 1891, David Moran, 70 years old, with two adopted children, but no lineal heirs, was united in marriage with the plaintiff, then a lady of 30 summers. They resided in Andrew county, where the husband was possessed of two farms, one a tract of 500 acres and the other a smaller tract of 106 acres. On the smaller farm these victims of the designing Cupid made their home, until 13 months later, when the Grim Reaper, unmindful of the achievements of the aforesaid Cupid, and with a shameless disregard for connubial felicity, entered the Moran home and wantonly struck down the doting husband. When the funeral was over, it was discovered that Moran had devised all his lands to his adopted children except a life estate in the 106-acre tract. By an antenuptial contract, Moran, in consideration of marriage, settled upon plaintiff the 106acre tract, "during her life or widowhood," and in consideration of rights acquired by that settlement she agreed to waive all claim to dower and homestead in the real estate of her husband. See 173 Mo. 211, 73 S. W. 177, for copy of contract. However, the plaintiff was not at all satisfied with such rights in the 106-acre tract as were given to her by the marriage contract, and during the last 20 years has assiduously sought to enlarge her estate in the realty of her deceased husband. This is her fifth appearance in this court in her efforts to acquire more property than she agreed to accept in full satisfaction of her marriage with Moran. See 122 Mo. 295, 26 S. W. 962; 132 Mo. 73, 33 S. W. 443; 151 Mo. 555, 52 S. W. 377; 173 Mo. 207, 73 S. W. 177.

On the 27th day of November, 1899, she instituted this action against the adopted son of her husband for dower in the 500-acre tract occupied by him, and also claimed damages for the deforcement of her dower in that tract. Defendant pleaded the marriage contract as a bar to plaintiff's dower; but this court held that said contract was not based on a sufficient consideration, and did not bar the plaintiff's right to dower. The first appeal in this particular cause resulted in a reversal and remanding of the cause for new trial. Moran v. Stewart, 173 Mo. 207, 73 S. W. 177. On May 25, 1903 (after the

After the commissioners' report was approved, the plaintiff filed a motion for a new trial, which being overruled, she appealed to this court. Later, this appeal was dismissed by the plaintiff as having been prematurely taken. Thereafter, at the May term, 1908 (four years after the approval of the commissioners' report), plaintiff moved the court to set aside its order approving the report of said commissioners appointed to set off dower and homestead, which motion was by the court stricken from the files on the 10th day of November, 1908; and plaintiff excepted. Thereafter, at the November term, 1908, at the request of the plaintiff, the cause was redocketed, and the issue of the plaintiff's right to damages for the detention of her dower in the 500-acre tract tried before the court sitting as a jury, and a judgment rendered in favor of the defendant, holding that plaintiff was not entitled to any damages; whereupon the plaintiff prosecuted this appeal.

cause was remanded by this court), defend-| to introduce, in support of said motion, nuant amended his answer so as to admit the merous files in other suits in which the plaintiff's right to dower in the 500-acre plaintiff was or had been a party; and also tract occupied by him, but asserted that he the will of the late David Moran. Upon obhad made several thousand dollars worth of jection of the defendant, the court refused permanent improvements on the property to allow these documents to be introduced, since the death of Moran, and prayed that on the ground that the offer came too late, the value of these improvements be deducted whereupon plaintiff saved her exceptions. It from any dower that might be assigned to does not appear that the plaintiff at any her. Defendant in his amended answer also time excepted to the order of the court apaverred that plaintiff was entitled to dower pointing and directing the commissioners how and homestead in the 106-acre tract occupied they should set off the plaintiff's dower and by her, the said 106-acre tract was equal homestead, nor does it appear anywhere that in value to one-third of all the real estate of she excepted to the homestead, nor does it her deceased husband, and prayed that dower appear anywhere that she excepted to the acbe assigned to her in all the real estate of tion of the court in confirming and approvdeceased, including the 106-acre tract. In ing the report of the commissioners. plaintiff's reply, she alleges that since the death of her husband she has held the 106acre tract "by virtue of her right of homestead and quarantine." On November 12, 1903, both parties, after waiving a jury and admitting "the facts set up in the pleadings," submitted the case to the court. The court found the issues in favor of plaintiff, and that she was entitled to dower in the 500acre tract, with damages for the detention thereof; also, that she was entitled to both dower and homestead in the 106-acre tract. The court then appointed appraisers to view the property and set off to plaintiff, first, a sufficient amount of the 106-acre tract to equal $1,500 in value as her homestead, and also a sufficient amount of the remaining lands occupied by the plaintiff and defendant to equal one-third of all the real estate of the deceased; said one-third to include the amount set off as homestead. At the same time the court also made an order directing the commissioners that, in ascertaining the value of the different tracts of land owned by the deceased, they should not consider any permanent improvements placed upon the lands since the death of Moran. On February 23, 1904, the commissioners filed their report reciting that they had set off plaintiff's homestead in the 106-acre tract and also the remainder of said 106-acre tract in full of her dower in all of her late husband's lands. When this report was filed, the plaintiff filed objections thereto, alleging, among other things, that the commissioners had placed a value on both tracts of land as of the date of the death of David Moran; that said lands had greatly increased in value since his death; and that the commissioners should have awarded the plaintiff one-third in value of all of said lands at the date of the assignment of her dower and homestead.

By what we suppose is the bill of exceptions in this cause, it appears that the plaintiff's objections to the report of the commissioners were overruled by the court while the plaintiff's attorney was temporarily absent from the courtroom. When he returned on the same day and was informed of the

For reversal of the judgment, plaintiff contends: (1) That the court erred in directing the commissioners to fix the value of the real estate as of the time of the death of David Moran and not allowing them to consider the enhanced value of the property brought about by the improvements made by defendant; (2) that plaintiff was the absolute owner of the 106-acre tract, and the court erred in assigning her dower in that tract; (3) that the defendant was barred at the time of filing his amended answer from having dower or homestead set off to plaintiff in the 106acre tract; and (4) that the court erred in not awarding her damages for the detention of her dower by defendant. Other alleged errors of the trial court are complained of, but they are either embraced in the foregoing assignments or found not worthy of attention.

J. W. Boyd, of St. Joseph, and Jas. M. Rea, of Savannah, for appellant. Booher & Williams, of Savannah, and Vinton Pike, of St. Joseph, for respondent.

BROWN, P. J. (after stating the facts as

plaintiff is that the court erred in directing | tiff out of the 106-acre tract, so far as it the commissioners to ascertain the value of the real estate as of the date of the death of Moran and instructed them not to consider any permanent improvements placed thereon by defendant.

Upon the record, this issue is not properly presented to us for review: First, because plaintiff did not object or except to the action of the court at the November term, 1903, when the commissioners were appointed and directed to disregard the permanent improve ments made on the land since the death of Moran; and, second, because no exceptions were saved to the order of the court approving the report of the commissioners.

[3] The action of the trial court in finding plaintiff was entitled to dower in both the 106 and the 500 acre tracts, its order appointing commissioners to set off homestead and dower therein, and directing them how to fix the value of said property, was not a final judgment nor any part thereof. It was only a preliminary order of the court leading up to a final judgment. Rannels v. Washington University, 96 Mo. 226, loc. cit. 231, 9 S. W. 569.

If the court erred in its directions to the commissioners, its attention should have been called to the error by a proper excep tion at the time such error was committed, so that the same could have been corrected then and there.

would go, that error must have been as apparent to plaintiff's attorney at the time the interlocutory judgment was entered and the order made as when the commissioners filed their report at the succeeding term of court; and, no reason being apparent why he failed to except to that interlocutory order when it was made, the objections to the report of the commissioners, made in exact conformity with the order under which they were appointed, comes too late, and cannot be considered on appeal. Richardson v. Association, 156 Mo. 413, 57 S. W. 117; Windes v. Earp et al., 150 Mo. 600, 51 S. W. 1044.

[4] In the trial of civil cases, the same duty rests upon plaintiff's as defendant's attorneys to aid the court in every possible way to try the case according to law; and among other duties so imposed is to except to every erroneous or improper act of the trial court which tends to prejudice the rights of their clients. Said exceptions must be saved at the very time such error is committed, to the end that the trial court may correct its error or mistake before it ripens into an erroneous or unjust final judgment.

[5] It was not necessary for the circuit court to have given the commissioners any written directions in regard to their duties. Chicago, etc., Railroad Co. v. Randolph Townsite Co., 103 Mo. 451, loc. cit. 468, 15 S. W. 437.

[6] If no directions had been given to the commissioners and their report had been erroneous under the law and facts, an exception to the order of the court approving this report would have been sufficient to have brought such error here for review; but the abstract does not show that any such exception was saved. An exception was only sav

tions to the report.

Section 2028, R. S. 1909, which provides that exceptions may be saved to the "opinion" of the trial court during the progress of trials, does not designate the class or nature of errors which may be preserved for review by bills of exceptions; but it has long been the practice in this state to require exceptions to be preserved to all erroneous rulings and orders of trial courts which tended to the order of the court overruling objecto produce unjust or erroneous final judgments. It was impossible for the General Assembly to foresee and designate the sundry classes of erroneous rulings, orders, or misconduct of the trial courts which might injuriously affect the rights of the litigants in the final determination of civil cases. It was therefore left to the appellate courts to determine what orders and rulings should form proper matters of exception and the effect of such errors upon the rights of litigants in each concrete case.

It has been held that the following orders made by trial courts, if erroneous and injurious to a litigant, must be excepted to by him when made: Orders awarding changes of venue. Gibney v. St. Louis Transit Co., 204 Mo. 704, loc. cit. 717, 103 S. W. 43. Orders consolidating suits. Turley v. Barnes, 67 Mo. App. 237, loc. cit. 240. Orders striking out parts of pleadings. Linn County v. Bank, 175 Mo. 539, 75 S. W. 393.

Sec

[7] The statutes do not require written exceptions to the report of commissioners appointed to assign dower or homestead. tions 374 and 6713, R. S. 1909. The trial court may determine the correctness or legality of such report in whatever manner is satisfactory to it. If written exceptions be filed and overruled, that does not injure either party, because the court can overrule the written objections and still reject the report of the commissioners on grounds not mentioned in such objections. When the report was approved, it became binding; and then the plaintiff should have excepted to the order approving it. This she failed to do. Richardson v. Association, 156 Mo. 407, loc. cit. 411, 57 S. W. 117.

[8] The report of the commissioners appointed to assign plaintiff's dower was ap proved by the circuit court on March 24, 1904, and more than four years thereafter, If the trial court erred in directing the to wit, on November 20, 1908, the plaintiff commissioners to disregard permanent im- apparently having discovered that she had provements made on the land of Moran and saved no exceptions to the approval of said

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