PARCELS V. JOHNSON, 87 U. S. 653 (1874)

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U.S. Supreme Court

Parcels v. Johnson, 87 U.S. 20 Wall. 653 653 (1874)

Parcels v. Johnson

87 U.S. (20 Wall.) 653


A writ of error from this Court will not lie to remove the judgment of an inferior appellate court where the judgment of that court remands a case to another below it for new trial and hearing and where it is evident that the parties have not exhausted the power of these inferior courts.

Mrs. Johnson brought suit against one Parcels in one of the circuit courts of Adair County, Missouri, to have an assignment of dower in a certain one hundred and twenty acres of land, of which she alleged that her husband had been seized in fee simple and in such way as that she was dowable of the land.

The facts appeared to be, that her husband, before his marriage with her, had been a soldier in the infantry service of the United States in the war of 1812, and as such was entitled under acts of Congress to one hundred and twenty acres of land; that a warrant for this quantity of land was issued to him; that the plaintiff was afterwards married to him; that they had one child; that the husband died, his wife and child surviving; that afterwards, under an act of Congress, the warrant was located on the land in which the dower was claimed; that a patent soon afterwards, and before this suit was brought, issued in the name of the husband, for it; and that the curator of the child, under certain judicial proceedings, sold the land to Parcels, the defendant. The defense was:

1st. That the husband in his lifetime had no such seizin or estate as authorized his wife to be endowed.

2d. That the curator had reserved one-third of the proceeds of the sale of the land for the wife's use and benefit, and as her supposed dower in the money.

The second defense, however, was not proved, the defendant relying chiefly on the first.

The Circuit Court of Adair County adjudged that the

Page 87 U. S. 654

husband had not been seized of any such estate as Mrs. Johnson could be endowed of.

From this judgment Mrs. Johnson took the case to the Supreme Court of Missouri. That court was of a different view, and having delivered and filed a learned opinion, found in the record, ordered the judgment of the Adair County Court to be reversed, and that

"The said cause be remanded to the aforesaid Adair Circuit Court for further proceedings to be had therein in conformity with the opinion of this Court herein delivered and filed."

From this judgment Parcels now brought the case here, where it was elaborately argued upon the merits.

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