The suit is to have dower assigned in certain land, in Sullivan County; the plaintiff was a judgment creditor of the alleged doweress, Magdalene S. Clelland, the widow of Robert C.H. Clelland, who died intestate in May, 1912, seized of the land in dispute. In March, 1918, the plaintiff recovered judgment against her in the sum of six thousand odd dollars. These facts are set up in the petition, which then alleges that no dower ever has been assigned to the defendant Magdalene S. Clelland, and prays that it be assigned to her.
The suit was brought under the provision of Section 347, Revised Statutes 1919, which gives a creditor *Page 316 of a widow the right to institute a proceeding to have dower assigned to her, manifestly so that he may subject her interest to the payment of his debt.
The action was begun against Magdalene S. Clelland alone. On the 9th day of November, 1918, M.J. Wattenbarger filed application to be made a defendant, which application was sustained; afterwards he filed a separate answer, in which he admitted the facts stated in the petition, and alleged that the plaintiff had caused execution to be issued upon the judgment which he had obtained against the defendant Magdalene S. Clelland, and caused her interest in said land to be levied upon and sold under said execution on the tenth day of May, 1918; that at said sale the defendant Wattenbarger became the purchaser of the land for the price of $150, which amount he paid to the sheriff, receiving the sheriff's deed to said land; that the purchase price paid the sheriff as aforesaid was paid to the plaintiff, and that the plaintiff received and retained the same, and is therefore estopped from questioning the validity of the sale under said execution.
The defendant Magdalene S. Clelland also filed a separate amended answer, setting up the same facts regarding the alleged estoppel.
On the trial of the case it was shown that at the execution sale the defendant Wattenbarger was the highest bidder and paid the sheriff the sum of $150; that the sheriff, after deducting thirty dollars, the costs and expenses of the sale, delivered his check for the balance — one hundred and twenty dollars — to the attorney for the plaintiff. There were several bidders at the sale, including plaintiff's attorney, Mr. Wilson.
Mr. Wilson testified that the sheriff's check for one hundred and twenty dollars was sent to his client, the plaintiff, and the plaintiff returned it to him, the attorney; that he had not cashed it, but had lost it. In the meantime he had found the sale was illegal, and was willing to return the check to the sheriff if he could find it, though he thought Wattenbarger was not entitled to *Page 317 it. On cross-examination he asserted that he still had the check, but he had told Wattenbarger that he would pay him back his hundred and fifty dollars. There was no evidence of a tender.
On this evidence the court found the issues for the defendants. The judgment recites the facts in relation to the execution, sale, and purchase by Wattenbarger, the payment of the money to the sheriff, the execution and delivery of a sheriff's deed to Wattenbarger, and finds that the plaintiff is estopped to maintain the suit.
The appellant's abstract of the record states that on the hearing of his motion for new trial, evidence was offered and received by the court showing that the plaintiff — evidently since the trial — had paid back to Wattenbarger the one hundred and fifty dollars, purchase price. Respondent asserts the record shows no such fact. The court overruled the motion for new trial and plaintiff appealed.
I. The common-law rule is that the widow's dower, consummate upon the death of her husband, is not real estate, but a mere chose in action, or a cause of action, and cannot be conveyed or levied upon as real estate until it be assigned. [WallerDower. v. Mardus, 29 Mo. 25; Young v. Thrasher, 61 Mo. App. 413; Carey v. West, 139 Mo. 177; Walker v. Alverson, 30 L.R.A. (N.S.) l.c. 117, note.]
This common-law rule has not been changed by statute in this State. Our statute recognizes the rule, because Section 347, Revised Statutes 1919, authorizes a creditor to have dower assigned so that he may levy upon it, and Section 316, Revised Statutes, 1919, authorizes a widow to convey her unassigned dower, which otherwise was not vendable. Therefore the sheriff's sale must be declared void, unless plaintiff is estopped to question its validity.
II. Appellant assigns error to the action of the court in permitting Wattenbarger to be made party defendant. *Page 318 It is argued that while under Section 1158, RevisedAdding Statutes 1919, a plaintiff may make party defendantParty anyone against whom he wishes to have anDefendant. adjudication, he cannot be compelled to sue a person whom he does not desire to bring into the controversy, where such person would not be affected by the result unless made a party. The Courts of Appeals in several cases have held that to be the rule. [Addison v. Dent County Savings Co., 226 S.W. 322, and cases cited.]
The appellant filed a term bill of exceptions in which the proceeding of the court in making Wattenbarger a defendant is set out. This recites that when the court made the order sustaining Wattenbarger's application, "the plaintiff then and there objected at the time." No exception was noted.
The plaintiff then filed a motion to strike out that part of the answer of Magdalene Clelland which sets up the purchase by Wattenbarger and estoppel of defendant. This motion was overruled, no objection was made and no exception saved to the ruling. This court, therefore, is precluded from reviewing the alleged errors in permitting Wattenbarger to be made a party and overruling the motion to strike out the answer of Magdalene Clelland.
III. Where one has the right to accept or reject the benefits of a transaction and takes and retains the benefits, he is afterwards estopped to take position inconsistent with the one thus assumed. Where one receives and retains the proceeds of a judicial sale of his land, he cannot afterwards be heard to assert that the sale was void. [Proctor v. Nance, 220 Mo. 104; Milan Bank v. Richmond, 280 Mo. l.c. 38, 39, 40, and cases cited.]
In this case the plaintiff's attorney caused execution to issue upon plaintiff's judgment, and to be levied upon the land in suit, caused the land to be sold, bid upon it at the sale, and received and retained the sheriff's check for the net proceeds of the sale. He explained that he *Page 319 had lost the check and could not return it to the sheriff, at the same time claiming that the plaintiff had a right to retain the proceeds of the sale.
If the plaintiff had received and retained the proceeds of the sale of his land, even though he had not caused the sale, he would be estopped to question the validity of the sale although in fact it was void. Where he, through his attorney, caused the sale to be made under execution upon his own judgment, he is bound by the acts of his attorney who had the conduct of the case and is estopped to declare the sale is void, at least in the absence of any offer to put the purchaser in the position he occupied before paying out his money.
There was no offer by plaintiff to put Wattenbarger in statuquo before the judgment was rendered, but he says on the hearing of his motion for new trial the plaintiff offered evidence to show that Wattenbarger has been paid back his one hundred and fifty dollars, a fact disputed by respondent. If he reached an agreement with Wattenbarger it would have been easy for Wattenbarger to make a conveyance to him and thus settle their differences. Such subsequent transaction of the parties would not affect the judgment as rendered, and would not affect the propriety of the ruling on the motion for new trial.
The judgment is affirmed. Railey and Reeves, CC., concur.