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order of the probate court confirming an executor's sale must be treated as final and conclusive until reversed or vacated (Bland v. Muncaster, 24 Miss. 62; 57 Am. Dec. 162), and will not be inquired into collaterally: Sackett v. Twining, 18 Pa. St. 599; 57 Am. Dec. 599, and note; Richardson v. Butler, 82 Cal. 174; 16 Am. St. Rep. 101, and note. In Townsend v. Tallant, 33 Cal. 45; 91 Am. Dec. 617, it was held that a void administrator's sale could be attacked collaterally, although confirmed by the probate court,
RUSSELL v. RUSSELL.
[122 MISSOURI, 235.) PARTITION. —ESTATES BY ENTIRETY ARE DISSOLVED BY DIVORCE; they thon
become tenancies in common, and may be partitioned. 1. C. Duckworth, for the appellants. I. H. Lucas, for the respondent.
236 SHERWOOD, J. The question presented by this appeal is whether a wife divorced from her husband can have partition of land owned by them prior to such divorce as tenants by the entirety. Such tenancies were recognized at an early day in this state (Gibson v. Zimmerman, 12 Mo. 385); at a time, too, 237 when our statute was in this form: “Every interest in real estate granted or devised to two or more persons, other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.” The statute had been in this form since 1835, and substantially in that form ever since 1825. Thus the statute remained until 1865, when it was amended by striking out the words “as such" and inserting immediately after them “or to husband and wife": Gen. Stats. 1865, sec. 12, p. 443.
This rule of the common law seems to have been intentionally emphasized in the amended statute just quoted, is a settled rule of property of this state, and the section still retains a place in the last revision: 2 Rev. Stats. 1889, sec. 8844; Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264; Hall v. Stephens, 65 Mo. 670; 27 Am. Rep. 302. In which last case, after a considerable citation and discussion of authorities, it was ruled that the interest of a husband in land by entirety could be sold under execution, but that his wife, surviving him, would take the entire estate.
The peculiarities of this sort of tenancy are derived from
the fact that in legal contemplation husband and wife are a unit of personality; there can be no moieties between them; they are each seised of the entirety per tout, not per my and the husband cannot forfeit or alien the estate, except during the period of his life: Hall v. Stephens, 65 Mo. 670; 27 Am. Rep. 302, and cases cited. And, owing to this legal unity of husband and wife, it is said to be impossible, even by express words, to convey land to them so as to make them tenants in common with each other: Dias v. Glover, 1 Hoff. Ch. 71; Stuckey v. Keefe, 26 Pa. St. 397, and cases cited.
This being the case, the question arises, What 238 effect, if any, does a decree of divorce have upon the status of an estate by entirety? On this point Freeman observes: "At the present day, partition of property held in entireties may be obtained in connection with a decree of divorce, or whenever, by a divorce, the legal unity of the cotenants has been destroyed. In other words, while the tenancy by entireties continues, no partition can be made; but when the tenancy has been converted into a tenancy in common, by the destruction of its peculiar and essential unity-namely, unity of person-it may, like other tenancies in common, be partitioned”: Freeman on Cotenancy and Partition, 2d ed., sec. 444.
Bishop, when speaking of the same topic, says: “But all agree that this tenancy does not and cannot exist where there is no marriage. The consequence is that, when the mar. riage ends by divorce, it falls ..... In most of our states there are statutes, contrary to the common law, whereby two persons seised of an estate become presumptively, or, in the absence of special words, tenants in common. Therefore, it has been held, and the author believes justly, that the effect of a divorce where this legislation prevails is to render the parties tenants in common of what before they held by the entirety": 2 Bishop on Marriage, Divorce, and Separation, secs. 1650, 1651. This is the prevalent view: Harrer v. Wallner, 80 Ill. 197; Hopson v. Fowl kes, 92 Tenn. 697; 36 Am. St. Rep. 120; 1 Washburn on Real Property, 5th ed., 708; 17 Am. & Eng. Ency. of Law, 692, 693; Kirkwood v. Domnau, 80 Tex. 645; 26 An. St. Rep. 770; Enyeart v. Kepler, 118 Ind. 36; 10 Am. St. Rep. 94.
The result of the reasoning and teaching of the foregoing authorities is to this effect: That, as a legal unity of husband and wife was the only basis of the estate by the entirety,
the destruction of that unity by divorce necessarily makes the tenants by the entirety 239 tenants in common; that the barrier of unity thus being removed, partition could be had between such tenants in common with the same facility and results as between other like tenants, and this upon the principle of the maxim, “ Cessante ratione cessat ipsa ler.” The lower court took the same view of the matter, and ordered partition to be made, and we affirm the judgment.
ENTIRETIES—EFFECT OF DIVORCE ON THE Estate. A tenancy by tho entireties, on the divorce of the husband and wife is destroyed, and the property which was subject thereto vests in them as tenants in common: Hopson v. Fowlkes, 92 Tenn. 697; 36 Am. St. Rep. 120, and note, with the cases collected
CallaHAN V. INGRAM.
(122 MISSOURI, 355.) SLANDER-PRIVILEGE-DISCUSSION OF OFFICIAL CONDUCT.-A member of
a city council, during a session thereof, is not privileged to falsely call another city officer a thief,” although the terin is intended to apply to his official conduct, if there is no inquiry pending or proposed as to
such conduct. BLANDER — PRIVILEGE QUESTION OF Law. - In an action of slander the
question whether the occasion on which the words were spoken was such as to make the communication one of privilege is always a question of law for the court, when there is no dispute as to the circumstances
under which it was made. SLANDER-INNUENDO.—The office of an innuendo in a declaration for slan.
der is to set a meaning upon words or language of doubtful or ambig. uous import; and which, if taken alone, are not actionable. In case the defamatory meaning is apparent from the words used no ndo is
necessary. BLANDER-INNUENDO.--If the words alleged as slanderous are actionable
per re an innuendo limiting their meaning may be disregarded. SLANDER-INNUENDO, WHEN DISREGARDED.-A declaration falsely made
that a person is a “downright thief” is slanderous and actionable per se, and, if alleged with an innuendo, is ground for recovery of damages, without proof that the words were spoken in the sense alleged in the
innuendo. SLANDER-IMPLIED Malice. — EXEMPLARY Damages may be recovered in an
action for slander when defamatory words are spoken with implied malice, as well as when they are spoken with express malice, and malice is implied from the willful utterance of falsehoods concerning another,
whereby injury is done to his character. SLANDER-EXEMPLARY DAMAGES-QUESTION FOR JURY.-Exemplary dam.
ages may always be given in actions for slander when the defamatory words are maliciously spoken, but whether such damages should be
given in any case is a matter within the discretion of the jury. If the defendant has put in evidence circumstances tending to rebut malice, exemplary damages can only be awarded in case the jury is satisfied that the words were maliciously spoken, and the jury should be so
instructed. SLANDER-DAMAGES-EVIDENCE IN MITIGATION.-Evidence of the intention
and motive of the defendant in slander in speaking the defamatory words is admissible in evidence for the purpose of mitigating the pun. ishment, by way of exemplary damages, but not for the purpose of
mitigating the actual damages. SLANDER – MALICE — Evidence. - In an action for slander statements by
others than the defendant about the matter respecting which the slan. derous words were spoken are adinissible in evidence to show want of
actual malice, SLANDER-EVIDENCE.—In an action for slander a person who heard the
defamatory words uttered cannot testify as to his understanding of their meaning. Thompson & Wilcox, for the appellant. H. Bell and W. Adams, for the respondent.
860 MACFARLANE, J. Action for slander. The petition charged that on the 4th of November, 1889, plaintiff was appointed superintendent of streets of Kansas City, which was an office of honor and trust, under the charter and ordi. nances of said city. That on said date, at a meeting of the common council of said city, in the presence of divers persons, naming other members of said council, and the clerk thereof, and other persons then present, defendant "falsely and maliciously spoke and published of and concerning the plaintiff the false and malicious words following, to wit: “Now, I want to say something, and I want the reporters to get it. The superintendent of streets, this Callahan, is a downright thief, and I can prove it.'”
The petition further charged that, at the time the words were spoken, there was not then pending before said council any ordinance, motion, resolution, or report referring to plaintiff or the oflice so held by him. “That defendant meant and intended by the use of said words so spoken and published by defendant as aforesaid to charge plaintiff with being guilty of willful, corrupt, and malicious oppression, partiality, misconduct, or abuse of authority in his oflicial capacity as such superintendent of streets or under color of his said office. Plaintiff further states that, at the time said words were so spoken by defendant, the defendant well knew the bame to be false, and said words were so spoken by defendant wantonly and maliciously, and with the intention of injuring
plaintiff"; that the words spoken 361 were false, and plaintiff was "greatly injured in said office and in his feelings, good name, and reputation."
The answer was a general denial and a special plea, as follows:
“For a second and further answer to plaintiff's amended petition defendant says that, at the time the supposed defamatory words were spoken by defendant, the lower house of the common council of Kansas City, being regularly in session, were discussing the office of superintendent of streets, and the actions and methods of Superintendent Callahan, the plaintiff. It had been stated by different members of the council that he was an inefficient and incompetent officer, and had been guilty of misconduct, oppression, partiality, and abuse of authority, in his official capacity. During this discussion the defendant, in the discharge of his duty as a member of said common council in discussing the official conduct of plaintiff, stated that the resolution previously introduced by him to investigate the city officials was aimed at Superintendent Callahan; that said Callahan, in his official position as inspector of curbing, had condemned curbing that was being put in by one party, and permitted another man, a favorite of said superintendent, to put in the same stone, entailing loss on the first man, and bestowing official favors on the second; that he had also given acceptances for curbing put in by one man to another, knowing at the time he gave the acceptances that the person to whom he gave them had not done the work, and was not entitled to them, thus enabling the second man to collect pay for work done by the first, and defrauding one man, to put money into the pocket of a favorite of said Callahan.
“Defendant, in stigmatizing such conduct as dishonorable and dishonest, applied the term downright thief' to said superintendent. Defendant says that this 36% statement was made in the discharge of his official duty as above set forth, and without malice or ill-will to plaintiff, and that he had good reason to believe, and did believe, that the statements he made were true, and that the opprobrious epithet he used was a just and fair characterization of such official misconduct.
Defendant further states that the circumstances above referred to are as follows: In June, 1887, John Henry had a private contract to put in about eighty-two feet of curbing for F.J. Baird on Twentieth street, between Southwest Boulevard and