Opinion
September 13, 1929.
1. STRICKEN ALLEGATIONS: Taken as True. For the purposes of the case, allegations stricken from appellant's answer must be taken as true on appeal.
2. HOMESTEAD: Dower and Quarantine: Remarriage: Law of 1875: Rights of Widow and Minor Children. When the first husband died in 1880 and the second in 1888, the homestead law of 1875 was in force, and the rights of the widow and minor children of both were determined by that law; and by that law (Sec. 2693, R.S. 1879; Sec. 5439, R.S. 1889), the homestead interest of the first husband, upon his death, vested in his widow and their two minor children, and the widow also had a dormant dower and quarantine, no homestead having been assigned. Her homestead interest was a life estate, which was not terminated by her marriage to her second husband in 1888. The interest of the two minor children by the first husband was an estate for years, terminating as to each upon reaching legal age. And where said two minor children and the mother jointly held possession, as they had a lawful right to do, the mother could not by remarriage or any other act or deed deprive the children of their interest. But the minor children of the second husband, whether by her or a former wife, had no interest in the homestead of the first husband.
3. HOMESTEAD: Sale to Pay Debts: Dower and Quarantine. The law in force in 1883 permitted the sale of land by the probate court to pay debts of the deceased owner, subject to the homestead interests of his widow and minor children; and when the land was so sold, the purchaser, though he was then her second husband, acquired a good title but subject to her quarantine and dower right and the homestead vested in her and her minor children upon the prior death of her first husband, the deceased owner. The sale passed to the purchaser the remainder in the fee which the minor children of the deceased owner would have inherited from him, but it did not affect the preceding homestead or dower interests.
4. ____: ____: Interests of Children of Purchaser. Where the land owned by the deceased first husband was sold to the widow's second husband to pay debts, the minor children of the purchaser, although he was then the widow's second husband and then had two children by her and one by a former marriage, had no part or share in the homestead of the first husband. The homestead estate was solely for the benefit of the widow and minor children of the first husband, and it did not open up to admit her children by her second husband, and much less did it open up to admit a child of her second husband by a former marriage, for he was a stranger in blood both to her and the children of her first husband.
5. ____: Children of Second Marriage. Where a homestead existed under the law of 1875 in favor of the widow and minor children it intervened to deprive her minor children by a later husband of a right to possession until her death, and if they reached their majority before her death they never had a homestead estate or possessory right, it matters not what estate their father had in the land.
6. ____: Dower: Taxes: Contribution. It is the duty of the life tenant to pay ordinary annual taxes accruing during his term. Under the Act of 1875 the homestead of the widow was a life estate, and the homestead of the minor children was an estate for years or during their minority, and it is the duty of the tenants of the homestead estate to pay such taxes. And the fact that the widow has a latent quarantine right does not relieve her of the duty of paying the taxes; and a purchaser of the interests of some of the remaindermen in fee is not entitled to contribution from the others for taxes paid by him during the continuance of the widow's homestead life estate.
7. CONTRIBUTION: Subrogation: Payment of Latent Husband's Debts. The interests of the widow and minor children of her first husband are unaffected by the probated demand against her second husband's estate, and her third husband, in paying the demand, protects only the remainder interests of the second husband's heirs, and not any possessory interest of his own or his wife or the minor children of the first husband, and consequently he cannot claim the right of subrogation on the ground that he was compelled to pay the demand to save himself.
8. ____: ____: ____: In Loco Parentis: Stepfather: Allegations. Whether the third husband is entitled to be subrogated for the payment of a probated demand against the second husband's estate, on the ground that he stood in some representative relation to the second husband's minor children such as authorized him to pay it and charge the amount against their interest in the property, in the same manner that an administrator or curator is sometimes subrogated for payments made by him personally to protect the estate he represents, will not be decided where the allegations are not broad enough to support a recovery on that theory.
9. ____: ____: ____: ____: Intending No Charge: Discrimination. Where the third husband neither made nor intended to make a charge against two children of the second husband for a probated demand against his estate paid by him, but bought from them for a round sum their interests as remaindermen in fee, thinking they were the sole owners, he is not entitled to contribution from another remainderman; for to allow subrogation against such other remainderman would be inequitable discrimination.
10. ____: Improvements: Life Tenant: Estate Jure Uxoris: Homestead. A life tenant has no power to charge the corpus of an estate for improvements, where he had a vested common-law marital interest or an estate jure uxoris, which was not taken away by the Married Woman's Act of 1889; and such an interest extends to a wife's homestead estate acquired through a former marriage. Under the common law, if the husband sees fit to make improvements on the real estate in which his wife has a life estate, he does so at the risk of receiving back compensation by an increased income, and cannot charge the estate of the remaindermen with the expense after her death.
11. ____: ____: Representative of Minors: Stepfather: Natural Guardian: Homestead. The third husband does not sustain such a representative relation to the minor children of the second or third husband as authorizes him to make improvements on the real estate and charge the costs against their remainder interest; not even when their mother and her children by her first husband have a homestead therein. Conceding that he stand in loco parentis to the children, he is not their curator, where the land has come to them from another source, and by force of the statute he cannot assume control of their real estate not derived from him without being appointed curator and giving bond.
12. PARTITION: Possession: Equity. The rule that a remainderman in fee out of possession cannot maintain an action for partition does not apply to a suit in equity. If the answer takes the case into equity, partition will not be denied.
Corpus Juris-Cyc. References: Dower, 19 C.J., Section 379, p. 582, n. 38. Estates, 21 C.J., Section 91, p. 953, n. 13; Section 93, p. 955, n. 69. Executors and Administrators, 24 C.J., Section 768, p. 236, n. 56; Section 1691, p. 684, n. 55. Homesteads, 29 C.J., Section 493, p. 1006, n. 48, 52. Partition, 47 C.J., Section 107, p. 311, n. 13. Subrogation, 37 Cyc., p. 376, n. 67. Taxation, 37 Cyc., p. 790, n. 68.
Appeal from Franklin Circuit Court. — Hon. R.A. Breuer, Judge.
AFFIRMED AND REMANDED ( with directions).
John W. Booth and Fred H. Kasmann for appellant.
(1) Rohlfing died intestate in 1880. At his death he owned an estate in fee in the land in plaintiff's petition described and was seized and possessed in fee of the same, and left surviving him his widow and his and her minor children. His homestead therein at his death passed to and vested in his widow for her life and his minor heirs, the said infants, during their minorities. The homestead law of 1875 was then in force. Ailey v. Burnett, 134 Mo. 313; Keene v. Wyatt, 160 Mo. 1; West v. McMullen, 112 Mo. 405. (2) Said homestead being in existence, said widow intermarried with Henry Schowe in the year 1881 and said Schowe took up his residence on said homestead, and by sufferance of said widow lived on said homestead with the widow and minor children of said Rohlfing, until 1888, when he died, intestate. All this occurred during the existence of said homestead of said Rohlfing. West v. McMullen, 112 Mo. 405; Spratt v. Early, 169 Mo. 357; Hufschmidt v. Gross, 112 Mo. 649; Sutton v. Casseleggi, 77 Mo. 405; Bank of Versailles v. Guthrey, 127 Mo. 189; Broyles v. Cox, 153 Mo. 242; In re Powell's Estate, 157 Mo. 151; 21 Cyc. 465, 563 (b); Armor v. Lewis, 252 Mo. 568. (3) If the administrator's sale of the land to Henry Schowe was valid, the effect was to divert the fee in the land from the two sons of Henry Louis Rohlfing to said Schowe and upon his death to his sons, as without such sale the said lands, on the death of the widow, would have gone, subject to the payment of the debts of said Rohlfing, to the sons of said Rohlfing, by the Statute of 1875; and the homestead of Rohlfing as an exemption and right of occupancy remained in possession of his widow for her life, and in the minor Rohlfing children, during their respective minorities. Poland v. Vester, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1; Hufschmidt v. Gross. 112 Mo. 649. (4) Such homestead was not liable for taxes and not subject to taxation; and not liable for any part of the purchase money for the fee in said land due by said Henry Schowe, and so not liable for any allowance made by the probate court against the estate of said Henry Schowe. No levy could he made and no execution had against the homestead, same being the homestead of the widow and minor children of said Rohlfing. But the fee or the land itself was liable for such taxes and for said allowance: said fee, being severed from the homestead, was the property of said Henry Schowe; and said homestead was the exemption of the widow and minor children of Rohlfing and not chargeable with or liable for any taxes; or for any charge or allowance due for or on account of said fee. Graves v. Cochran, 68 Mo. 74; Moore v. White, 61 Mo. 441; Ailey v. Burnett, 134 Mo. 313; Mahoney v. Nevins, 190 Mo. 360; 21 Cyc. 580, 581. The exemption of the homestead holds against the state as well as against persons. State v. Pitts, 51 Mo. 133; 21 Cyc. 519, 520. (5) The remaindermen are liable for the taxes to protect their remainder. Hall v. French, 165 Mo. 430; Smith v. Mount. 149 Mo. App. 668. (6) The homestead as such, of the widow and minor children of Rohlfing, could not be charged with or be liable for the dwelling house and other buildings and improvements, reasonably necessary for the use of said widow and her family put and built upon said homestead and upon said land by appellant, the husband of said widow. Authorities above. (7) The rebuilding of the dwelling house and other buildings and improvements on said homestead and said land by appellant at his own expense was necessary for the preservation of a home for said family on said homestead; and the law favors and intends that said homestead should remain a home for said widow and minor children; and if at the same time said improvements are a benefit to the remaindermen, their value which they bore to the land at the time the homestead or particular estate ended became a charge against the land. Ex parte Palmer, 2 Hill Eq. (S. Car.) 215; 16 Cyc. 631. (8) When the appellant put said dwelling house and other permanent improvements on said premises he did not know of the existence of respondent, and he put said improvements on said premises in good faith, to preserve the integrity of the homestead which the law favors and intends; and it was a benefit to the remaindermen. And when afterwards in 1919, the appellant contracted with Albert and Emil Schowe and they with him for the purchase and sale of the fee-simple title to said land and appellant believed he had bought the entire title and all differences on account of said improvements became settled in good faith; and during all of which time respondent was not under any disability, but used the name of "George Wittnaben," and remained silent and did not inform appellant of his existence; he cannot come after the ending of said homestead and demand his one-third part of said lands and improvements without contribution on his part of the one-third part of the value of the buildings and improvements on said land placed thereon by appellant. The trial court erred in striking out appellant's said part of said answer and erred in adjudging and decreeing partition of said lands without adjudging and decreeing contribution from respondent to appellant of the one-third part of the value of the improvements at the time of the suit. Bispham's Principles of Equity (8 Ed.) 39; Ex parte Palmer, 2 Hill Eq. (S. Car.) 215; Frederick v. Frederick's Admr., 13 L.R.A. (N.S.) 514; 16 Cyc. 631; 21 Cyc. 517, 518 (4 a); Mo. Cent. B. L. Assn. v. Eveler, 237 Mo. 877; 31 C.J. 31, 314; Richmond v. Ashcraft, 137 Mo. App. 191; Hodgson v. Oil Development Co., 274 U.S. 15, 54 A.L.R. 869.
Jesse H. Schaper for respondent.
(1) The trial court did not err in sustaining the motion of plaintiff to strike out defendant's answer purporting to set up affirmative defenses and seeking affirmative relief. The parts of the answer so stricken out did not state facts sufficient to constitute any defense or any affirmative relief in this action. (a) Such answer is predicated on the claim that defendant as the husband of a life tenant may recover from plaintiff as the remainderman for improvements alleged to have been made by him on the estate. The law is that neither a life tenant nor the husband of a life tenant has any right to recover from the remainderman for improvements made during the continuance of the life estate. Building Loan Assn. v. Eveler, 237 Mo. 679; 21 C.J. 953; Frederick v. Frederick's Admr.; 31 Ky. Law Rep. 584, 13 L.R.A. (N.S.) 514, and note; Creutz v. Heill, 89 Ky. 429; Varney v. Stevens, 22 Me. 331. The tenant of a life estate, making permanent and valuable improvements, can have no claim upon the remainderman for rembursement. The improvements were made upon his own estate for its better enjoyment by him, and presumably with full knowledge of the right in the remainderman to the entire estate, with all its improvements, upon the termination of the life estate. The life tenant, in making improvements, does not expend his money for another's use and advantage, but for his own. Deanes v. Whitfield, 107 Miss. 273; Re Trusts, 4 Ont. 518. (b) That it is the duty of the owner of the life estate to pay the ordinary annual taxes assessed against the property, and upon his failure so to pay, suit is properly brought against him. Bradley v. Goff, 243 Mo. 95. (c) The claim for the payment of three hundred and fifty dollars on note given by Henry Schowe to F.W. Bade, administrator of Henry Louis Rohlfing, on November 14, 1881, was barred by the two-years' statute of limitations relating to the presentation and allowance of demands against the estate of deceased persons in force at the time of the death of said Henry Schowe, deceased. Secs. 183, 184, R.S. 1889. (d) It is immaterial in disposing of defendant's contention on the question of homestead, whether Augusta Kallmeyer, the deceased wife of defendant, owned a homestead in the lands as the widow of Henry Louis Rohlfing deceased, her first husband, or whether she owned a homestead in the lands as the widow of Henry Schowe deceased, her second husband, because it is an accepted fact in this case that she did occupy and enjoy all of the same land as her homestead from the death of her said second husband in 1888 until her own death in 1923. The estate so owned and occupied by her was a life estate and continued until her death. The rights of defendant, in either event, remained the same in the end. (2) The trial court was justified under the pleadings and the evidence in rendering the decree in partition and the order of sale of the lands in suit under the first count of the petition.
The defendant appeals from an interlocutory decree in partition. The assignments of error go to the point that the trial court erred in striking out a part of appellant's answer and in refusing to charge the plaintiff-respondent with his share of taxes and improvements on the land involved, and one other item, the outlays therefor having been made by appellant over a series of years while in ignorance of respondent's outstanding interest. The respondent's defense, in brief, was that in expending moneys for the above purposes the appellant acted as a mere volunteer, or while holding possession in right of his wife who was life tenant by virtue of her homestead interest; and that respondent, being only the owner of an undivided share in the remainder, is not liable therefor.
The real estate which is the subject of the action is an eighty-acre farm in Franklin County. The respondent's petition alleges that his father, Henry Schowe, died intestate in February, 1888, owning and occupying it as a homestead. He left three minor children, the respondent, George Schowe, born in 1874 of a former marriage, and Albert and Emil Schowe, children of his second wife and widow, Augusta Schowe. According to the petition, on the death of Henry Schowe the widow, Augusta, and the three children became seized of a homestead in the land and the widow likewise was entitled to dower. Subject to these, the three children severally inherited the fee, each having an undivided one-third interest.
Neither dower nor homestead was ever assigned and the widow made no election, so far as the record shows, but she continued to live on the land until her death in September, 1923. In the meantime, about a year after Henry Schowe's death, she married the appellant, August Kallmeyer, in September, 1899. Twenty years later in 1919 he obtained from Albert and Emil Schowe a warranty deed conveying their interest in the land to him.
Early in October, 1923, about a week after the widow's death, the respondent, George Schowe, presented himself to the appellant, Kallmeyer, and made claim to a third interest in the premises, but Kallmeyer declined to recognize him as a tenant in common, or said he would have to produce pretty good proof. And so the petition alleges the respondent to be the owner of a third interest in the land and prays a partition by sale, accordingly, and for an accounting of the rents and profits for the years 1923, 1924 and 1925, subsequent to the widow's death.
The foregoing condenses and substantially sets out the allegations of the petition, the evidence in support thereof and the legal conclusions drawn by respondent therefrom. But it will be noticed the facts thus far stated do not disclose why Kallmeyer, the appellant, doubted or denied respondent's claim to a third interest in the land.
On this point the undisputed evidence was that Henry Schowe married his first wife over in Warren County in 1873. He left her the next year about the time George was born. She obtained a divorce in 1877. George was reared by his mother in her home and went by her name, Wittnaben. It seems even Henry Schowe's second wife. Augusta, was ignorant of his existence, and the appellant testified that when George came to his home in 1923 and made claim to an interest in the land it was the first time he had ever seen or heard of him. Kallmeyer thought Schowe left only the two children. Albert and Emil.
By his answer the appellant attempted to bring into the case the following facts antedating the history thus far narrated. Augusta had been married before she married Schowe. Her first husband was Henry Rohlfing. Of that marriage two children were born. Rohlfing bought the land in suit in 1875 and the family lived thereon. He died intestate in 1880, leaving Augusta and her two minor Rohlfing children and the land as their homestead and subject also to her dower, though neither dower nor homestead was ever assigned and the widow made no election. The answer alleges, however, that the land at that time was worth less than $1500 and was not within the limits of any city, town or village, which made it unnecessary to set out the homestead or to assign dower. The younger of the two Rohlfing children came of age in 1899.
Augusta married Henry Schowe, as has been stated, in 1881. He joined the family and lived on the farm. There was an administration on the estate of Henry Rohlfing, in the course of which the land was sold through the probate court to pay his debts, in 1883. Henry Schowe was the purchaser, paying $2000, part in deferred payments for which he gave his notes. When Schowe died in 1888 the family consisted of the two Rohlfing children, the two Schowe children and the widow. The respondent, George Schowe, was never a member of the household, as appears from the facts already detailed.
Following Augusta's third marriage, to the appellant Kallmeyer in 1889, he cared for the family as husband and step-father, farmed the land, paid the taxes and constructed useful and necessary improvements costing $4000, including a dwelling house to replace the one theretofore on the land, which through accident was destroyed by fire. In addition to this he expended money for another item. There was still a balance of $360.50 due on one of the notes Henry Schowe had given the Rohlfing estate in part payment of the purchase price of the land when he bought it. In the course of administration on Schowe's estate, the note was probated as a demand and Kallmeyer paid it in 1890. The answer alleges the appellant constructed the improvements and paid the probate demand for the benefit of himself and his family; that his wife and children were without means; and that Henry Schowe left no personal estate available for the payment of the demand.
The answer further states that in 1919 for a valuable consideration in the sum of $2000 he obtained a warranty deed to the land from Albert and Emil Schowe, they conveying as the sole and only heirs of Henry Schowe, deceased.
Finally it is alleged that from the time of appellant's marriage to Augusta until her death he held possession of the farm in right of the homestead interest vested in her and her minor children through the Rohlfing marriage; and that subsequent thereto he continued in possession claiming the fee title under his deed from Albert and Emil Schowe. The pleading further disclaimed any knowledge as to whether the respondent was in truth a son and heir of Henry Schowe and demanded strict proof thereof; and prayed if the fact should be established that the respondent be required to make contribution of a third part of the taxes and probate claim paid, and for the present value of the improvements made, and that the same be charged as a lien against his interest, and for general relief.
At the trial, on respondent's motion the court struck from the answer all the foregoing allegations relating to Augusta's marriage to Henry Rohlfing, the birth of their two children, and the homestead and dower interests arising therethrough; also that part concerning the improvements made and probate demand paid; also the paragraph detailing the purchase of the land by Henry Schowe from Rohlfing's estate in 1883 (though the respondent was permitted to introduce the administrator's deed in evidence), and the paragraph concerning the purchase of the land by the appellant Kallmeyer from Albert and Emil Schowe. The allegations as to taxes paid were not stricken from the answer, but the appellant was allowed to prove only taxes paid subsequent to the death of the widow.
The interlocutory decree found that Henry Schowe had a homestead in the land; and that on his death his widow, Augusta and the three Schowe children succeeded to a homestead estate therein; that the widow also had a dower right; that her homestead interest ended on her remarriage to the appellant and thenceforward until her death she was seized in virtue of her dower (or, perhaps, quarantine, though neither the petition nor the decree so designates the interest). The respondent's prayer for an accounting of the rents and profits for the years 1923, 1924 and 1925 was denied, and the appellant was allowed credit for a third of the taxes paid for the years 1923 and 1924. The court found the land could not be divided in kind and ordered a partition sale.
For the purposes of the case we must treat as true the allegations stricken from appellant's answer. When Henry Rohlfing died in 1880 and when Henry Schowe died in 1888, the homestead law of 1875 was in force, governing the point at Homestead: issue. [Sec. 2693, R.S. 1879; Sec. 5439, R.S. 1889; Law of 1875. Laws 1895, p. 185.] The rights of the parties are to be determined by that law. [Bushnell v. Loomis, 234 Mo. 371, 384-5, 137 S.W. 257, 260.] Upon the death of Rohlfing a homestead estate in the land vested in his widow, Augusta, and the two Rohlfing children. The widow had also a dormant dower and quarantine right if decisions construing the homestead law of 1895 are equally applicable to the law of 1875; and we shall so assume. See Chrisman v. Linderman, 202 Mo. 605, 622, 100 S.W. 1090, 1095. Her homestead interest was a life estate. As the law then stood, it was not terminated by her remarriage. [West v. McMullen, 112 Mo. 405, 410, 20 S.W. 628; Hufschmidt v. Gross, 112 Mo. 649, 655, 20 S.W. 679, 681.] The interest of the two Rohlfing children was an estate for years, terminating as to each at his majority. They and their mother jointly held possession under their several rights, and the mother could not by remarriage or any other act or deed deprive them of their interest. [Phillips v. Presson, 172 Mo. 24, 72 S.W. 501.]
In these circumstances Henry Schowe bought the farm from Rohlfing's administrator in 1883. The law at that time permitted the sale of land by the probate court to pay debts of the deceased owner, subject to the homestead interest of Sale to his widow and minor children (Sec. 2693, R.S. 1879; Pay Debts. Poland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1, 9, 60 S.W. 1037, 63 S.W. 116, 117); and there is no question but that Henry Schowe got a good title by his purchase, but it was subject to the quarantine and dower right of Augusta, and the homestead estate vested in her and the Rohlfing children. The sale passed to Schowe the remainder interest in the fee which the Rohlfing children otherwise would have inherited from their father, but it did not affect the preceding homestead and dower interests.
Under these facts, it is plain the three Schowe children had no part or share in the Rohlfing homestead. That estate was solely for the benefit of Rohlfing's widow and Rights of children, and it did not open up to admit Later Children. Augusta's two children by her second marriage (Canole v. Hurt, 78 Mo. 649, 652), and much less George Schowe who was a stranger in blood to both Rohlfing and Augusta.
Neither did the three Schowe children acquire a homestead interest through their father. Henry Schowe. Whether Schowe, himself, had a homestead exemption in the land need not be decided; for whatever his interest was, it could not pass in possession to his minor children at his death, because the paramount interest of Augusta and the Rohlfing children intervened; and Augusta's interest continued dominant until 1923, long after all the children had reached their majority. So it is our opinion that the Schowe children had no homestead estate or other possessory interest in the land throughout the thirty-four years from September, 1889, when the appellant Kallmeyer married Augusta, until her death in 1923. They were seized simply of an undivided one-third interest each in the remainder by inheritance from their father, Henry Schowe.
Applying the foregoing conclusion to the immediate issues. It is the duty of the life tenant to pay ordinary annual taxes accruing during his term. But the appellant argues Contribution: that that law does not fit this case, because the Taxes. quarantine and homestead interests of the widow and Rohlfing minors were not liable for taxes, thereby leaving the burden to fall on the remaindermen. This contention cannot be sustained.
The tenants of a homestead estate must pay the taxes. [Falvey v. Hicks, 315 Mo. 442, 451, 286 S.W. 385, 388-9; Wicoff v. Moore (Mo.), 257 S.W. 474, 476.] As to the quarantine interest, the general rule is as stated by appellant, 24 Corpus Juris, section 768, page 236. The reason for it is that quarantine is a mere possessory right or privilege accorded the widow, and the heirs can bring the tenure to a close at any time by having dower assigned. [Graves v. Cochran, 68 Mo. 74, 77; Gentry v. Gentry, 122 Mo. 202, 220, 26 S.W. 1090, 1095; Kenney v. McVoy, 206 Mo. 42, 63, 103 S.W. 946, 951-2.] But when, as is alleged in the answer in this case, the amount and value of the land left by the deceased to which the dower and homestead rights of his widow attach, are less than the limit set by the homestead law, dower cannot be assigned. It is submerged in the homestead as long as the latter continues. [Sec. 2694, R.S. 1879; Sec. 5859, R.S. 1919; Chrisman v. Linderman, supra, 202 Mo. l.c. 621, 100 S.W. l.c. 1095; Jordan v. Rudluff, 264 Mo. 129, 135, 174 S.W. 806, 808; Smith Bros. Land Inv. Co. v. Phillips, 289 Mo. 579, 233 S.W. 413.]
We have in this suit an indefeasible homestead life estate running for forty-three years from the death of the husband (Rohlfing) in 1880, during all of which time the heirs were powerless to force an assignment of dower. It will not do to say that throughout this long period the widow was relieved of the duty of paying taxes on the land because of her latent quarantine right, and that the burden rested first on the children who shared the homestead with her until they attained their majority, and thenceforward on the owners of the fee. On the facts pleaded in the answer we hold the appellant was not entitled to contribution from the respondent for taxes paid during the continuance of the mother's homestead life estate, because the respondent was not liable for the taxes accruing during that period. The trial court ruled correctly on this point.
Considering next the appellant's claim to contribution for a third of the $360.50 paid to satisfy the probate demand against the estate of Henry Schowe, deceased, in 1890. The answer contains only the general allegation that appellant made the payment for the benefit of himself and family. But Subrogation. at that time his only interest in the land was in right of his wife, and her interest and that of the Rohlfing minor children had come to them directly from Henry Rohlfing, deceased. These interests were unaffected by the probate demand against Schowe's estate. In making the payment, therefore, the appellant protected only the remainder interest of the Schowe heirs and not any possessory interest of his own or his wife's or the Rohlfing minors. Consequently he cannot claim the right of subrogation on the ground that he was compelled to make the payment to save himself.
The only other possible theory on which subrogation might be allowed would be on the theory that he stood in some representative relation to the Schowe children such as authorized him to pay the demand and charge it against their interest in the property in the same manner that an executor, administrator, guardian or curator is sometimes subrogated for payments made by him personally to protect the estate he represents. [37 Cyc. sec. 3, p. 440; Sec. 4, p. 442.] The appellant was not guardian or curator of the Rohlfing minors, so far as the answer shows, though he perhaps stood in loco parentis under such cases as St. Ferdinand Loretto Academy v. Bobb, 52 Mo. 357, 360. But whether or not because of that relation the appellant could pay the demand and hold it as a claim against the Schowe children it is unnecessary for us to decide, because, in our view, the allegation in the answer is not broad enough to support a recovery on that theory.
Furthermore, the implication from the answer is that he neither made nor intended to make any such charge against the other two Schowe children, Albert and Emil. He paid the demand thinking they were the sole owners of the remainder interest, and later bought the land from them for the round sum of $2000. If he did not hold it against them, he ought not to be permitted to bring it up against the respondent who claims only a part of the title appellant had absolved in their hands. To rule otherwise would be to countenance an inequitable discrimination against the respondent. [Byrne v. Byrne, 289 Mo. 109, 128, 233 S.W. 461, 465; Hines v. Hines, 243 Mo. 480, 500, 147 S.W. 774, 777.]
Finally, as to the claim for improvements. The appellant's answer does not say when they were made except that it was while the children were minors, and as the youngest of all the children became of age in 1909 it must have been, at the Improvements. latest, prior to that time. This was ten years before the appellant bought an interest in the land in 1919, and while he was holding in right of the homestead estate of his wife and perhaps of the Rohlfing minor children, as his answer states.
The general rule is that a life tenant has no power to charge the corpus of the estate with improvements, but there are exceptions (Mo. Cent. B. L. Assn. v. Eveler, 237 Mo. 679, 684, 141 S.W. 877, 26 Ann. Cas. 486, 489, note; 13 L.R.A. (N.S.) 515, note; 21 C.J. 953, sec. 91); and it may be the claim in this instance would come within one of the exceptions if the appellant had been the life tenant at the time, or if his wife were the claimant — this on authority of such cases as Grogan v. Grogan (Mo.), 177 S.W. 649, 650, where it was held a widow in possession of land under her homestead and quarantine right could recover in a partition suit for rebuilding a barn destroyed by fire.
But we do not decide that question. It is not in the case. The appellant's only interest in the land was this. He and Augusta Rohlfing-Schowe were married in September, 1889, before the Act of 1889 giving a married woman control of her real estate went into effect. That law was added by amendment to Section 6869 in the revision of 1889 and did not become effective until November 1 of that year (see Sec. 6614, R.S. 1889). He therefore had a vested common-law marital interest or estate jure uxoris in the land. It was not taken away by the statute; and this court has held en banc that such an interest extended to a wife's homestead estate acquired through a former marriage. [Lewis v. Barnes, 272 Mo. 377, 398, 404, 199 S.W. 212, 218, 220.] The case dealt with a homestead under the law of 1865, which was a fee, but as a husband's marital interest also covered his wife's life estates (30 C.J. 527, sec. 43; 13 R.C.L. 1047, sec. 67), we take it the decision is applicable as authority here.
An estate jure uxoris, however, was not an interest sufficient to bring appellant's case within any exception to the general rule mentioned in the second paragraph preceding. Under the common law, as is said in 13 Ruling Case Law, section 70, page 1050, "it was well settled that if he (the husband) saw fit to make improvements upon the real estate of his wife, he did it at the risk of receiving back a compensation for his labor by an increased income; and, in the event of her death, he could not charge the estate with the labor, and services and expenses, incurred in improving the real estate." See also, Rogers v. Wolfe, 104 Mo. 1, 12, 14 S.W. 805, 808; Boynton v. Miller, 144 Mo. 681, 687-8, 46 S.W. 754, 755; Curd v. Brown, 148 Mo. 82, 95, 49 S.W. 990, 993.
Neither did the appellant sustain any representative relation to the four minor children — the two Rohlfing children and the two Schowe children Albert and Emil — such as authorized him to construct the improvements and make them a charge against the remainder interest. Conceding again he stood in loco parentis he was not their curator and the land had come to them from another source. By force of the statute he could not assume control of their real estate not derived from him without being appointed curator and giving bond. [Sec. 5279, R.S. 1889; State ex rel. v. Staed, 143 Mo. 248, 252, 45 S.W. 50.]
And so, summing the matter up, we are unable to see any theory under the facts pleaded in the answer which will entitle the appellant to recover for the improvements. So far as concerned his own interest in the land he made them at his own risk; so far as his wife's interest was concerned they are presumed to be a gift; and so far as touched the remainder interest of the Schowe children their construction was not authorized by law. The mere fact that the appellant subsequently bought an undivided interest in the fee which brings him into this case as a party, cannot aid him.
It has been said that in equitable partition even where money compensation for improvements is claimed "the only good faith required in such improvements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-tenants or encumbering their estate, or hindering partition." [Freeman on Cotenancy and Partition (2 Ed.) sec. 510, p. 680.] See also 47 C.J. sec. 506. p. 472. sec. 507, p. 474, sec. 855, p. 584; 20 R.C.L. sec. 17, p. 736; Armor v. Frey, 253 Mo. 447, 477, 161 S.W. 829, 838. But it is evident this rule does not apply when the one making the improvements neither has nor thinks he has an interest in the land which would support a claim for compensation.
The point is also made by appellant, in argument, that the respondent cannot maintain this action for partition because he is out of possession. [Buck v. McMinn (Mo.), 300 S.W. 497, 501.] That rule, however, does not apply to actions in Partition: equity for partition. [Waddle v. Frazier, 245 Mo. Possession. 391, 402, 151 S.W. 87, 90; Barnard v. Keathley, 230 Mo. 209, 223, 130 S.W. 306, 310; and in our opinion the answer in this case takes it into equity, Byrne v. Byrne, supra (289 Mo. l.c. 122, 233 S.W. l.c. 464): Lease v. Bratton (Mo.), 293 S.W. 140, 141.] Accordingly the point is ruled against the appellant.
The result of it all is that even under the allegations stricken from the answer the conclusions reached by the trial court are correct on all three assignments of error — with respect to the claim for contribution for taxes, for the probate demand paid, and for the improvements. But we think the court was in error in its intermediate conclusions or findings that the Schowe children had a homestead estate in the land, and that Augusta Rohlfing-Schowe-Kallmeyer lost her homestead life estate on her marriage to Henry Schowe. These findings, however, do not affect the decree proper. Accordingly, the cause is affirmed and remanded for further proceedings not inconsistent herewith. Lindsay and Seddon, CC., concur.
The foregoing opinion by ELLISON, C., is adopted as the opinion of the court. All of the judges concur.