Shores v. Shores , 34 Mo. App. 208 ( 1889 )

Thompson, J.,

delivered the opinion of the court.

This is a proceeding to enjoin the defendants from the occupancy of certain land claimed by the plaintiff as her homestead. It appeared that in the lifetime of the plaintiff’s husband, he occupied as his family homestead, a house, outbuildings and eighty-seven acres of land, sixty acres of which were under cultivation,— residing thereon with his wife and minor children ; that he executed a lease to the defendant, Nathan Shores, by which he demised for the term of fifteen years, subject to an annual rental consisting of one-third of the crop raised by the tenant, all of the land, except the house and outbuildings, and that during the life-time of the lessor, the defendant Nathan Shores, went into possession under the lease. No claim of homestead had ever been filed or recorded on behalf of the wife, as provided by section 2689, Revised Statutes. With Nathan Shores thus in possession, cultivating the land, the plaintiff’s husband died.

The object of this suit is to restrain the defendant, Nathan Shores, and the other defendants, who are subtenants with him, from occupying and cultivating the land under the lease, on the theory that such occupancy is an invasion of the plaintiff’s right of homestead. The circuit judge rendered a decree in favor of the defendants, and assessing damages on the injunction bond, which damages included one hundred dollars for counsel fees. From this decree the plaintiff prosecutes this writ of error.

We are of opinion that the decree of the circuit court was right. As the plaintiff had not filed in the recorder’s office her claim of homestead during the lifetime of her husband, it was subject to alienation, as against her right of homestead, without her joining in the deed ; and as the husband could have conveyed it without her joining in the deed, to the entire exclusion of her right of homestead, he could exclude the same right partially by demising it for a term of years. The rights of the defendants therefore, take precedence over the plaintiff’s claim of homestead, so far as her claim extends to the actual possession of the land included within the lease. But as the statute of homesteads embraces not only the homestead itself, but also “the rents, issue and products thereof” (R. S., sec. 2689), and as the statute is to be favorably construed in favor of the right of homestead, it does not appear but that the plaintiff may enjoy her homestead right, subject to the rights of the defendant, by receiving the rents reserved in the lease. The allegation that the defendants are insolvent, creating the inference that she may not get these rents, does not entitle her to the present remedy ; since if the rents are not paid as required by the lease, she can forfeit it under its terms and resume possession of the land.

So far as the present action was conceived with the design of protecting the plaintiff’s right of dower, it is sufficient to say that it nowhere appears that her dower has been set apart in the land, and it is needless to suggest that a suit for an injunction is not the proper proceeding for the admeasurement of dower.

Complaint is made that the damages assessed on the injunction bond included attorney’s fees, and a Kentucky case is cited in support of this contention. It is sufficient to say that it is the law of this state that attorney’s fees may be included in an assessment of damages on an injunction bond. Holthaus v. Hart, 9 Mo. App. 1; Buford v. Packet Co., 3 Mo. App. 159; s. c. affirmed, 69 Mo. 611.

The judgment will accordingly be affirmed.

All the judges concur.